### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jul y 14
, 200 9

STA TE OF TEN NES SEE v. JOHN L. TRU LL

Direc t Appeal from the Circ uit Court forCroc kett County

No. 3918 Clayburn Peeples, Judge

No. W2008-02613-C CA-R 3-CD - Filed September 9, 2009

The de fenda nt, John L. Trull, pled gui lty in the C rocke tt County Circuit Court to driving under the influence (“D UI” ), third offe nse, and w as sentenc ed to eleve n months, twenty-nine days, with all but 120 days suspended. As a condition of his guilty plea, he rese rved the following certified question of law: “ Whethe r the a

rre st of the defe ndant was unconstitutional in violation of Article I, Section 7 of the Tenne ssee Constit ution a nd the Fourth A mendment of the United State s C o n s t i t ution.” Up on re vie w o f the re c or d, we a gr e e wi th the Sta te tha t th e c e rt if ie d qu e sti on of

la w d oe s n ot c le arl y state the scope and limits of the legal issue the def endant sought to rese rve f or appe al. Acc ordingly, we dismiss the appea l.

Tenn. R. App . P. 3 Appeal as of Right; Appeal Dismissed

A LA N E. G LE NN , J

. , d elivere d the opinion of the court, in which J OHN E VERET T W I L L I AMS and N OR MA M C G EE O GLE , JJ., joined.

Cha rl e s S. Ke lly , D ye rs bu rg , T e nn e sse e , f or the app e lla nt, Jo hn L. Tr ull

.
Rob e rt E. Coo pe r, Jr
., Attorne y G e ne ra l a ndRe po rt e r; Le sli e E. Pr ic e , A ssi stant At torne y G e ne ra l; Gar ry G. Brown, D istrict Attorney Ge nera l; and Stephanie J. Ha le and Edw ard L. H ar d i ster, Assistant District Attorneys Gene ral, for the appe llee, State of Te nnessee

.
OP IN ION

FA CT S

At approximate ly 1:12 a.m. on May 16, 2007, C ro ckett County Sheriff’ s Deputy Allan Gilliland was driving west on Highwa y 88 toward Maury City when he spotted the de fendant’s motionless vehicle, with headlights and brake light s on, in the parking lot of a daycar e ce nter. Upon investigating, he discover ed that the vehicle was i n drive, engine running, while the de fendant was aslee p behind the whe el with his foot on the brake . When the defe ndant awoke and opened his car door, De puty Gillil and observed that his speec h was slurred and that an odor of alc ohol emanate d from his vehicle . The de fenda nt answer ed in the af firmative when Deputy Gilliland asked if he ha d-2-

be e n d ri nk ing , w a s e xtr e me ly u ns te a dy on his fe e t w he n h e exi ted th e ve hic le , a ndwa s u na ble to perf orm any of the field sobriety tests that he attempted.

The defe ndant was indicted for DUI; DUI, fourth offe nse; driving on a suspende d, canc elled

or re voked license ; driving on a suspended, c ance lled or revoked license with two or more prior DUI

co n v i ct i o n s resulting in a re voked license ; and violation of the implied consent law. H e subsequentl y fi l ed a motion to suppress “any and all materia ls and/or evidenc e obtained and/or seize d as the result of the illegal invalid sear ches of the def endant’ s vehicle,” arguing that the of fice r had no proba

ble cause to believe he wa s committi ng a crime and no re ason to seize him.

At the s uppression hearing, Deputy Gilliland testified that the def endant’ s vehicle w as in the parking lot ap p ro x i m at el y twenty-five fee t from the roa dway with its lights on. He stated that he chec ked to see if anything was wrong beca use he did not know why the vehicle was ther e. He later

e xp la ine d that it wa s the us ua l pr a c tic e of the sh e ri ff ’s de pa

rt me nt t o s top a ndc he c k a ny ve hic le in such circ umstances, e specia lly if i t ap p ea red to be occupie d. He sa id he did not activate his blue lights. He testified t hat he had to knock twice on the defendant’s window to awa ken him . When the de fe nd a nt a wa

ke ne d a ndop e ne d th e do or , h e fi rs t a sk e d h im i f any thi ng wa s med ic a lly wr on g w ith him

. T h e d e f

e n d a n t a n s w e r e d “ [ n ] o

. ” H o w e v e r , t h e d e f e n d a n t ’ s s p e e c h w a s s l u rr e d
, a n d De pu ty Gilliland smelled a strong odor of a lcohol. He, ther efor e, aske d the def en d an t i f he ha d been drinking, and the defe ndant replied that he had. Deputy Gilliland de scribed t h e d efendant’s difficulty in standing and his u nsucce ssful attempts to perform the various fie ld sobriety tests he reque sted. He sa id that he had to hold the defe ndant to preve nt him from falling as he attempted the

on e -l e g sta nd a nd that he te rm inate d the te sts a t th a t po int du e to h is f

e ar that th e de fe nd a nt w ou ld fall and injure himself.

Follow in g th e d e n ia l o f h is mo ti o n to s u p p r e s s , th e d e f e n d a n t p le d g u il ty to D U I, third offe ns e, i n ex ch an ge for a sente nce of

eleve n months, twenty-nine days, with all but 120 days

su sp e nd e d. Th e re ma ini ng c ou nts of the ind ic tme nt w e re dis mis se d. As a c on ditio n of his gu ilt y plea, t h e defe ndant attempted to re serve the following ce rtified question of law , which wa s stated in the jud gme nt fo rm , “ Ag re e d Or de r Re se rv ing Di sp os iti ve Ce rt if ie d Qu e sti on of

La w, ” a ndgu ilt y plea a gree ment as follows: “Whe ther the arr est of t he defenda nt was unc onstitut ional in violation of Article I, S ection 7, of t he Tennessee Constit ution and the Fourth Amendment of the United States Constit ution?”

AN AL YSI S

Th e de fe nd a nt c on te nd s o n ap pe a l tha t th e tr ia l c ou rt e rr e d inde ny ing his mot ionto s up pr e ss evidenc e obtained a s t h e result of his allegedly illegal stop and seizur e. The State responds by

arg uin g th a t the app e a l sh ou ld be dis mis se d be c a us e the qu e sti on in the jud gme nt fo rm is t oo br oa dly and ambiguously worde d for a ppellate r eview a s a ce rt i fi ed question of law . We a gree with the State.

Rule 37(b)(2) of the Te nnessee Rules of Criminal Proce d u re pr ovides that an a ppeal lies fr om any judgment of c onviction upon a plea of guilty or nolo contendere if:-3- (A) [ T]he de fenda nt entere d into a plea a gree ment und er R u l e 11(a )(3) but

e xp lic itl y r e se rv e d –

wi th the c on se nt o f the state andof thec ou rt – th e ri gh t to appea l a ce rtified question of law that i s d i s p o s i t ive of the c ase, and the following

re qu ir e me nts are me t:
(i) the judgment of c on v i ct i on or other doc ument to which such judgment ref ers that is filed be fo re t h e notice of a ppeal, c ontains a statement of the ce rtified question of law that the de fendant reserved for appellate revie w;
(ii) the question of law is state d in the judgment or document so as to identify clea rly the scope and limits of the legal issue re serve d;

(iii) the judgment or docume nt refle cts that th e certified que stion was expre ssly reser ved with the conse nt of the state a nd the trial court; and

(iv) the judgment or doc ument ref lects that the de fendant, the state, and the trial court a

re of the opinion that the certified question is disposi tive of the c ase[ .]

Tenn. R. Crim. P. 37(b)(2)( A). In State v. Pre ston, 759 S.W.2d 647 (Tenn. 1988), our supre me court emphasize d that the burden is on the defendant to ensure that the conditi ons for pr operly pre serving

a qu e sti on of

la w p ur su a nt t o Ru le 37 ha ve be e n me t:
This is an appropriate time for this Court to make e xplicit to the bench and bar e xactly what the appellate courts wi l l h er eafter r equire as pre requisites to the

c on sid e ratio n of the me ri ts of a qu e sti on of la w ce rt if ie d pur su a nt to Te nn . R. Cr im. P. 3 7( b) (2 )( i) or (iv ). Re ga rd le ss o f w hat ha s a

pp e are d in prior

pe tit ion s, or de rs , c oll oq uy in o pe n c ou rt

or oth e rw ise
, the fi na l or de r o r j ud gme nt f ro m w hic h th e tim e begins to run to pursue a T.R.A.P. 3 appeal must co n t ai n a stateme nt of the dispositi ve ce rtified question of l aw reser ved by defenda nt for appe llate re view and
t h e q u e s t i o n o

f l a w m u s t b e s ta t e d s o a s t o c l e a rl

y i d e n t i f y t h e s c o p e a n d t h e l i m i ts of the l egal i ssue reserv ed

. Fo r e x am ple

, whe re qu e sti on s of law inv olv e the v ali dit y of se arches and the admissibili ty of statem ents and confessions, etc., the r easons relied upon by de

fendant in the trial court at t h e suppression hearing must be ide nti fie d in the sta te me nt o

f th e c e rti fie d q ue sti on of l aw a nd re v ie w by the ap pe lla te courts will be limited to those passed upon by the trial j udge an d s t a t ed in the certified question , absent a constitutional re q u i re m ent ot herw ise. . . . No issue beyond the sc ope of the certified question will be considere d.

Id. at 650 (e mphasis added)

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The de fenda nt argue s in his brief that the State cannot show that the traf fic stop and se izure tha t ledt o h i s arr e s tw a s b a s e d u p o n r e a s o n ab l e s u s p i c i o n , s u p p o r t e d b y s p e c i f i c a n d ar t i c ulable fac ts, that a criminal offe nse had been or was about to be committed. The re serve d question of law, howeve r, is couche d in t h e v er y broade st terms of whethe r the de fendant’s arr est was unconstitutional in vi olation of the re levant provisions of the United State s and Te nnessee-4-

Constit utions. In State v. Kale J. Sandusky, No. M2008-00589-CCA-R3-CD, 2009 WL537526, at *3 (T e nn . Crim. Ap p. Ma r. 4, 20 09 ), app lic . f

or pe rm . to app e a l fil e d ( Te nn . M a y 1 , 2 00 9) , th is
court c oncluded that whe ther law enforceme nt office rs’ e ntry into a defe ndant’s home violated constitutional guarantee s against unre asonable sear ch and s ei zure under the state and f eder al constitutions was too broad a que stion to satisfy the s trict mandates for properly certifying a question of law. Bec ause the question in the case at bar is simi larly too broa dly worded to c lear ly identify the sc op e a nd lim its of the le ga l iss ue that the de fe nd a nt so ug ht t o r e se rv e , w e dis mis s th e app e a l.

CO NC LU SION

We c onclude that the de fenda nt has failed to satisfy the require ments for c ertifying a que s tion of law f or appe al pursuant to Te nnessee Rule of Criminal Procedure 37(b)( 2 ). Ac co rdingly, we dismiss the appe al.

___________________________________ ALAN E. G LENN, JUD GE