### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs October 13 , 2015

STATE OF TENNESSEE v. THOMAS GEORGE HEADLA

Appeal from the Circuit Court for Sevier County
No. 18798

- III Rex H. Ogle , Judge

No. E2015

- 00560

- CCA

- R3

- CD

– Filed December 30, 2015

The Defendant, Thomas George Headla , plead ed guilty in the Circuit Court f or Sevier County to driving under the influence (DUI), a Class A misdemeanor

. See T.C.A. § 55

- 10

- 401 ( 2012 ) (amended 2013, 2015)

. The trial court sentenced the Defendant to eleven months, twenty

- nine days suspended to probation after forty

- eight hours in confinement. On appeal, the Defendant presents a certified question of law regarding the legality of the traffic stop. We affirm the judgment of the trial court

.

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

R OBERT H. M ONTGOMERY

, J R

., J. , delivered the opinion of the court, in which J AMES C URWOOD W ITT

, J R

., and T IMOTHY L. E ASTER

, JJ. joined

.

Bryan E. Delius and B ryce McKenzie

, Sevierville , Tennessee, for the appellant, Thomas George Headla

.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber

, Senior Counsel ; James Dunn

, District Attorney General ; and Gregory Eshbaugh and Bradley Jones

, Assistant Di strict Attorney s General

, for th e appellee, State of Tennessee.

OPINION

This case relates to a traffic stop of the Defendant ‟s sport utility vehicle (SUV) based upon a n anonymous 9

- 1

- 1 call and subsequent observa tions by a police officer.
The Defendan t filed a motion to suppress the evidence obtained as a result of the stop

, contending that the officer lacked reasonable suspicion or probable cause to initiate a
stop

.

At the suppression hearing, Sevierville Police Officer Graham Brantley testified
that he was certified in Tennessee h ighway s afety standard field sobriety testing. Officer- 2

-

Brantley said that around midnight on January 22, 2013 , dispatch advised him that a 9

- 1

- 1 caller reported a reckless driver in a “white SUV, possibl y a Tahoe Suburban, a larger
SUV model.” After Officer Brantley turned onto Highway 66

, dispatch advised him that his patrol car was behind the 9

- 1

- 1 caller and that “the vehicle

. . . was t he one farther up
the road.” Officer Brantley said that he observed a n SUV matching the description provided by the 9

- 1

- 1 caller, that the SUV was preparing to turn left

, and that he followed it. Officer Brantley stated

,

As I fell in behind [the SUV ] , it began to go through the intersection of Huffaker and 66 at a very slow rate. It be gan to go up Huffaker. As it approached the stop sign for Huffaker and Grandview, it stopped approximately six feet short of the stop sign. It pulled up a little bit more and stopped again and then it began to turn right onto Grandview

. . . . [It]

swung a wide turn and began traveling on the left side of Grandview Drive.

The video recording from Officer Brantley‟s police cruiser was played for the trial court. In the recording, Officer Brantley turned onto Grandview Drive. A white SUV
was visible on t he road way ahead of Officer Brantley‟s cruiser . The SUV drifted
between the middle and left sides of the road way before drifting to the far left side of the
road way

. Officer Brantley activated his blue lights

, and the SUV continued driving slowly on the left side of the road way before turning right into a driveway. 1

Officer Brantley testified that Grandview Drive was a “relatively straight,” flat,
and undivided two

- way road. He said that at the time he stopped the SUV

, no cars were parked along the roa d , no vehicles were traveling on the road, and n o construction zones were in the area

. Officer Brantley said that he observed the SUV for about two minutes before activating his blue lights.

On cross

- examination, Officer Brantley testified that the Defe ndant never exceeded the speed limit or “ weaved ” with in his lane of travel and that the Defendant turned appropriately at a traffic light and maintained his lane of travel on Huffaker Road
before the stop sign . Officer Brantley said that stopping short of a stop sign was not a
traffic violation. He stated that the Defendant passed a van parked in a driveway with its bumper two to three feet from the right side of the road and that in Officer Brantley‟s experience, c ars were routinely parked on Grandview D rive

.

Officer Bra ntley testified that he did not know whether the 9

- 1

- 1 caller “had an axe to grind” with the Defendant. Officer Brantley stated that he did not ask the

1 The recording as contained in the record continued to show field sobriety tests administered by Officer Brantley, but the record refl ects that the trial court did not view this part of the recording at the suppression hearing

.- 3

-

dispatch er to investigate the caller. He said that he did not observe any suspicio us activity before the Defendant turned off Highway 66. Officer Brantley stated that “[a]mong other indicators,” the reason he stopped the Defendant was “the position of the vehicle in relation to the roadway[.]”

Upon examination by the trial court, Offi cer Brantley testified that with his certification in field sobriety testing , he observed “various indicators of [impaired] driving that aren‟t necessarily traffic violations, such as negotiating curves slowly,

s t opping short, [and] misjudgment of distance s[.]”

Thomas Ham, a private investigator, testified for the defense that he traveled to
Grandview Drive multiple times to photograph the area where the traffic stop occurred and to document traffic and parking patterns

. He said that it was common for vehicles to park along the right side of Grandview Drive “in the actual travel path[.]” Photographs of Grandview Drive taken by Mr. Ham after the night of the stop showed vehicles parked
on the street.

On cross

- examination, Mr. Ham testified that the police cruiser video recording
did not show vehicles parked on the right side of Grandview Drive but that there was “a
white van

. . . near the edge of the roadway, and that‟s at also the point where [the Defendant‟s] vehicle [moves] . . . as if he is movi ng over to give distance to that vehicle.”

The prosecutor contended that reasonable suspicion and probable cause existed to stop the Defendant. He argued that the Defendant‟s SUV matched the description and
location of the vehicle described by the 9

- 1

- 1 caller and that Officer Brantley observed “indicator[s] of impairment

, ” including the Defendant ‟s driving slowly, stopping short of the stop sign, and driving on the left side of Grandview Drive . The prosecutor also argued that because Grandview Dr ive was a two

- way street, the Defendant was in
violation of the statute requiring vehicles to drive on the right side of the road. See T.C.A. § 55

- 8

- 115 ( 201 4 ).

The Defendant argued that the sole reason for the traffic stop was the position of
the Def endant‟s SUV on Grandview Drive , which could have been explained by the general presence of parked vehicles on the right side of the road

. The Defendant also argued that he did not violate Code section 55

- 8

- 115 because he stayed “as much as practical to t he right side of the roadway[.]”

The trial court denied the Defendant‟ s motion to suppress. The court found that the Defendant “was well over the middle of the road, that in an[d] of itself, maybe being a little bit over the center of an unmarked road, might not be enough, but it does appear to the Court on the video that he was way over.” The court also found that the 9

- 1

- 1 caller‟s information was partially confirmed by Officer Brantley. The court concluded that the- 4

-

information provided by the 9

- 1

- 1 caller, when combined with Officer Brantley‟s
observations

, created probable cause. The court stated “ that there was nothing on the roadway where the defendant was stopped . . . [ and the Defendant] went

. . . that far over
in the other lane . . . I think that gave this officer probable cause to stop him.”

After the suppression heari ng, the Defendant pleaded guilty and reserved the following certified question:

W hether the trial court erred in denying the Defendant‟s motion to suppress when the Defenda nt‟s vehicle was seized without warrant pursuant to a traffic stop in violation of the Article 1, section 7 of the
Tennessee Constitution and the Fourth and Fourteenth Amendments of the United States Constitution where no reasonable suspicion supported

an investigatory stop, no probable cause of a traffic violation existed, and no exception to the warrant requirement or consent supported the stop where the Defendant drove left of center on an undivided roadway and
no other traffic violations were observed b y law enforcement.

Tennessee Criminal Procedure Rule 37(b)(2)(A) provides that an appeal can b e taken from a plea of guilty if the Defendant enters into a plea agreement and explicitly
reserves with the consent of the State and the trial court a certifi ed question of law that is dispositive of the case. See Tenn. R. Crim. P . 37(b)(2)(A)(i)

- (iv); State v. Armstrong

, 126 S.W.3d 908 (Tenn. 2003). “An issue is dispositive when this court must either affirm the judgment or reverse and dismiss. An issue is never dispositive when we might
reverse and remand [

. ] ” State v. Wilkes , 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984). Furthermore, the fact that the defendant, the State, and the trial judge have agreed the issue is dispositive does not bind this court

. S tate v. Preston , 759 S.W.2d 647, 651 (Tenn. 1988). “ [T] he appellate courts must

. . . determine if the record on appeal demonstrates how that ques tion is dispositive of the case . . .

. If the appellate court does not agree that the certified question is dispositive, appellate review should be denied. ”
Id

. (citing State v. Jennette , 706 S.W.2d 614, 615 (Tenn. 1986) ) ; see State v. Dailey , 235 S.W.3d 131, 134

- 3 5 (Tenn. 2007). The certified question must also clearly identify “t he scope and limits of the le gal issue reserved .” See Tenn. R. Crim. P. 37(b)(2)(A)(ii)

.

The Defendant contends that the stop was not supported by reasonable suspicion

, arguing that our supreme court‟s opinion in State v. Hanning

, 296 S.W.3d 44 (Tenn. 2009), was overruled by the Un ited States Supreme Court in Navarette v. California , 134 S.Ct. 1683 (2014). The State responds that the certified question is not dispositive of the

case , that consideration of the effect of Navarette on Hanning is outside the scope of the certified ques tion, and that the stop was supported by reasonable suspicion and probable

cause.- 5

-

We agree with the Defendant that the certified question is dispositive of the case
because the sole evidence of the Defendant‟s intoxication was obtained as a result of th e traffic stop and that absent Officer Brantley‟s observations, reasonable suspicion or probable cause would not have existed to support the traffic stop. The question identifies the scope and limits of the issue reserved. We therefore consider the quest ion on its
merits.

We agree with the State that consideration of Navarette is outside the scope of the certified question. Navarette and Hanning discuss the reliability of anonymous 9

- 1

- 1 callers and how that determination bears on reasonable suspicion. The certified question raises Officer Brantley‟s observations as a basis for the stop, not the 9

- 1

- 1 call. As a result, we will consider the certified question only in the context of Officer Brantley‟s
observations.

A trial court‟s findings of fact 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). Questions about the “credibility of the witnesses, th e 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 prevailing party is entitled to the “strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be
drawn from that evidence.” State v. Keith , 978 S.W.2d 861, 864 (Tenn. 1998); see State
v. Hicks , 55 S.W.3d 515, 521 (Tenn. 2001). The trial court‟s application of the law to its factual findings is a question of law and 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 I, section 7 of the Tennessee Constitution protect individuals from unreasonable searches and seizures.

See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. Warrantless seizures are “presumed unreasonable, and evidence discovered as a result thereof is subject to suppression unless
the State demonstrates that the . . . seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997); see Coolidge v. New Hampshire , 403 U.S. 443, 454

- 55 (1971); State v.

Binette , 33 S.W.3d 215, 218 (Tenn. 2000).

A law enforcement officer‟s initiating a traffic stop constitutes a seizure pursuant
to the United States and Tennessee Constitutions. Whren v. United States , 517 U.S. 806,
809

- 10 (1996); see Delaware v. Prouse , 440 U.S. 648, 653 (1979) ; see also State v. Vineyard , 958 S.W.2d 730, 734 (Tenn. 1997); State v. Pulley , 863 S.W.2d 29, 30 (Tenn. 1993). However, a police officer is permitted to initiate a traffic stop without a warrant for the purpose of a brief investigatory stop based upon “ specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [an]- 6

-

intrusion.” Terry v. Ohio , 392 U.S. 1, 21 (1968); see Binnette , 33 S.W.3d at 218. The objective standard for determining whether a pol ice officer has specific and articulable facts that a suspect has committed a crime or is about to commit a crime focuses on
whether “the facts available to the officer at the moment of the seizure . . . warrant a man
of reasonable caution in the belief th at the action taken was appropriate[.]” Terry , 392
U.S. at 21

- 22 (internal quotation marks and citations omitted); see State v. Garcia , 123 S.W.3d 335, 344 (Tenn. 2003). “Reasonable suspicion is a particularized . . . basis for suspecting the subject of a stop of criminal activity, and it is determined by considering the totality of the circumstances surrounding the stop.” Binette , 33 S.W.3d at 218 (internal citations omitted). This determination includes considerations relative to “„(i) the public inter est served by the seizure, (ii) the nature and scope of the intrusion, and (iii) the objective facts upon which the law enforcement officer relied in light of his knowledge and experience.‟” Pulley , 863 S.W.2d at 34 (quoting United States v.
Mendenhall , 4 46 U.S. 544, 561 (1980) (Powell, J., concurring)). The objective facts

upon w hich the officer relied may include , but are not limited to, the officer‟s observations, information received from fellow officers, information received from citizens, and the “p attern of operation of certain offenders.” State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 1992). “ As a general rule

. . . the stop of an automobile is constitutionally reasonable, under both the state and federal constitutions, if the police have probable cause or reasonable suspicion to believe that a traffic violation has
occurred. State v. Vineyard , 958 S.W.2d 730, 734 (Tenn. 1997) (citing Whren v. United

States , 517 U.S. 806 (1996)).

The record reflects Officer Brantley ‟s testimony that he observ ed the Defendant turning slowly and stopping short of a stop sign and that according to Officer Brantley‟s training, these were indicators of impairment. Officer Brantley also testified, and the police cruiser video recording reflected, that the Defendant failed to drive upon the right half of the roadway , which was a traffic violation

. S ee T.C.A. § 55

- 8

- 115

. The trial
court noted the Defendant ‟s driving “that far over” on the left side of the road and the absence of cars parked on the right side of the road. Officer Brantley ‟s observations gave rise to specific, articulable grounds for reasonable suspicion that the Defendant was driving while under the influence

. In addition, Officer Brantley h ad probable cause to
conduct a stop based up on a traffic vi olation. The evidence does not preponderate against the trial court‟s finding that the stop was supported by probable cause. The
Defendant is not entitled to relief on this basis.

In consideration of the foregoing and the record as a whole, we affirm th e judgment of the trial court.

____________________________________ ROBERT H. MONTGOMERY, JR., JUDGE