# FILED
March 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1997 SES SION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9612-CC-00526

) ) Maury County v. ) ) Honorable James L. Weatherford, Judge ) AVERY Q. WALKER, ) (State appeal - Motion to Suppress) ) Appellant. )

DISSENTING OPINION
I respectfully dissent fro m the majority opinion’s conclusion, upon the record before us, that Officer Gault was justified in arr

esting the defendant. Also, I believe that the case shoul d be remanded to the trial court for the entry of appropriate findings of fact that would all ow for sufficient appellate rev iew.
As to the majority opini on’s legal conclusion regarding Officer Gault’ s right to arrest the defendant, I do not agree with its implication that the po lice are justified in arresting a person if the person has no photograph identification to present. The statutory circumstance used by the majority opi nion to justify foregoing use of a citation states, in toto , “The person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field- administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation.” I believe that this provision, by its

full terms, reflects that the l egislature did not contempl ate that a photograph identification w ould be required.2 The burd en at the suppress ion heari ng was upon the state to prove by a preponderance of the evidence that the arrest was justified. There was conflicting testimony regarding material points. Officer Gault had little personal recollection of his contact with the defendant, stati ng that he did not recall a ny particular statements made by the defendant. Also, he did not recall checking informatio n with the dispatcher, although he indicated that if the defend ant was who he said he was and the license number was confirmed, a citati on would have been issued. On the other hand, the dispatcher’s testimony reflected that Officer Gault did, i n fact, check the license number and information that the defendant claimed to have given to the officer. The defendant testified that the information “chec ked out.”
I believe that there was evidence presented from which the trial court could ha ve found that Off icer Gaul t’s testim ony was insu fficie nt to prove by a preponderance of the evidence that the arrest was justified. Similarly, I bel ieve that the trial court could hav

e found, as well, that the ci rcumstances as testified to by the defendant, as corroborated by the dispatcher, reflected sufficient provision of identification to justify t he use of a citation. In other w ords, if the trial court c

oncluded that Officer Gault’s testimony , admittedly given with faulty memory, di d not prove the state’s case by the preponderance of the evidence, I believe that the evidence before us and the law would s upport the trial court’s decision to grant the moti on to suppress.

Unfortu nately, th e trial cou rt did not enter fi ndings of facts, o nly a conclusory order that stated that “the motion is well-taken and should be granted . . . .” Ordinarily, the burden is upon the complaining party, in this case the state, to insure that the reasons for a trial court’s order are made part of the reco rd for review. This would mean that the state w ould be unsuccessful in this app eal because the conflicting evidence justifies us conc luding that the trial c

ourt discredited the materi al parts of Officer Gault’s testimony. However, Rule 12(e), Tenn. R. Crim. P., states, “W here3

factual issues are invol ved in determining a moti on, the court shall state its essential findings on the record.” ( Emphasis added). Thus, an affirmativ e duty is placed upon the trial court to render findings of fact regardless of neithe r party making a request therefor. Under these circ umstances, I believe that w e should remand the case for the trial court to enter findin gs of fact that resolve mater ial factual issues necessar y to proper ap pellate review.

_____________________________ Joseph M. Tipton, Judge