# FILED
January 29, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9802-CC-00087 Appellant, ) ) MONTGOMERY COUNTY VS. ) ) HON. JOHN H. GA SAWAY , III, MICHAEL K. CLARK, ) JUDGE ) Appellee. ) (State Appeal --- DUI, Reckless Driving, Refusal to

Submit to Blood Alcohol Test, and Drivi ng on Revoked License)
FOR THE APPE LLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP MICHAEL JON ES Attorney General & Repor ter District Public Defender KAREN YACUZZO CHARLES S. BLOODWORTH Asst. Attorney General Asst. District Publi c Defender John Sevier Bldg. 109 S. Second St. 425 Fifth Ave., North Clarksville, TN 37 040 Nashville, TN 37243-0493 JOHN W. CARN EY District Attorney General LANCE A

. BAKER Asst. District Attor

ney General 204 Franklin St., Suite 300 Clarksville, TN 37

040 OPINION FILED:____________________

REMANDED F

OR FURTHER FINDI NGS JOHN H. PEAY, Judge2 

### O P I N I O N

The def endant was charged by indictment with driving while under t h e influence (DUI), reckless driving, refusing to submit to a blood alc ohol test, and driving
on a revoked license. H e moved to dis miss the charges on the basis that the police authoritiesmade an unlawful traffic stop. Following a hearing, the trial cour t granted the defendant’s motion and dismiss ed the indictment. The State now appeals. The sole issue on appeal is whether the t rial court properly dismissed the indictment. We remand the case for further findings from the trial court.

On A ugus t 31, 1997, Officer Shane Dortch of the Clarksville Police Departmentreceived a radio dispatch call to respond to the area of Fiv e Points Market. Apparen tly, a citizen had complained t o the police department that four “v ery intoxicated” people were in a 197 8 Oldsmobile vehicle near the store. When Officer Dortch responded to the radio dispatch call , he saw the Oldsmobile in the store parking lot. As the Oldsmobile left the store parking lot, Officer Dortch followed it. Approximately twotenths of one mile away , Officer Dortch stopped the Olds mobile and arrested the defendant, who was drivin g. On the a rrest warra nt, the o nly reason Office r Dortch ga ve forstopping thedefendant’s car was that a complaint of four “very intoxicated” individuals in a 1978 Oldsmobile had been rece ived.

At the hearing on th e motion to dismiss, Officer Dortch tes tified that after he stopped the defendant’s car, he arrested the defendant becaus e he smelled strongly of alcohol and was unsteady on his feet. When asked why he decided to s top the Oldsmobile in the first place, Officer Dortch replied that he had observed the defendant commit tw o traffic violations--- i.e., driving tw enty-four to twenty-

six miles per hour i n a twenty-mile-per- hour

zone and turning rig ht onto another str eet with out signaling---and that he had suspected the defendant of DUI becaus e of the complaint received. When3

asked why the warrant reflected only that the defendant was arrested based on a citizen’s complaint, he replied that he only put on the warrant what h e believed was necessaryfor establishingpro bable c ause. Officer Dortch admitted that he had never written a speeding ticket fo r somebo dy driving four to six miles over the speed limit. He also admitted that had it not been for the radio br oadcast he received from disp atc h, h e probably would not h ave stopped the defendant’s car since he was not in the area at the time.
Followingargume nts, the trial court g ranted the defendant’s motion to dismiss, stating as follows: A police officer may make an inv estigatory stop w

hen the officer has a reasonable suspicion supported by specific an d ar ticulable facts that a criminal offense has been or is about to be committed. An investigatory

stop may

be based upon information contained in a police radio br oadcast issued by a law enforcement agency. It is not necessarythat the officer making the inv estigatory stop ha

ve pe rsonal kn owled ge of the facts contained in the radio br oadcast, but the prosecuti on d oes have the burden of establishi ng by a preponderance of the evidence that the person or agency that’s responsible for the broadcast did have specific and

articulable facts that a cr iminal offense had been or was about to be committed. In order to determine

whether a police officer’s reasonable suspicion is supported by specific and articulable facts, the Cour t must consider the totality of the circumstances. Based on the evidence before me, the Court finds that Officer Dortch received a radio broadc ast from his dispatch, that there was a specific vehicle with four occupants in it who w

ere intoxicated. He went to the loca tion gi ven to him and saw the car and followed it and stopped it. The w arrant s that he swore to indic ate that he stopped the vehicle because of the information that he had received. His testimony is that the vehicle he observ ed may have been speeding by going some 24 miles an hour in a 20 mile zone, and that he remembers that it did not make a turn signal. When asked if he would ha ve stopped the vehicle had it not been for the broadcast over theradio, he quite candidly indicted [sic] probably

not. The standard that the Court has to apply is whether or no t the State has met its burden of

establishingby a preponderance of the evidence that it’s more likely than not. I n t his particular case, considering all of the facts and circumstances, the Court believes that the weight of the evidence supports the Defendant’s contention that the stop was made because of the broadcast. . . .4 In a situation like that, you need to get behind the car and follow it, and see if there’s anything that independently alerts the officer so that he can stop based on that person’s observation. The motion is granted.

The temporary detentionof individuals during the stop of a vehicle by police constitutesa “seizure” under the meaning of the Fourth Amendment of the Unit ed States Constitution and article 1, section 7 o f the Tenne ssee Constitution. Whren v. United States , 517 U.S. 806 (1996); State v. Vineyard , 958 S.W.2d 730 (Tenn. 1997). The stop of a vehicle, howev

er , “is constitutionally reas onable, under both the state and federal constitutions, if the police have probable cause or reasonable suspici on to believe that
a traffic violation has occurred . . . despite the subjective motivation of the police officer making the stop.” Vineyard , 958 S.W.2d at 734 (citing Whren , 517 U.S. at [813], 116 S. Ct. at 1774)(footnote omitted).

The record indicates that the t rial court did not apply th e proper legal standard in this case. Contrary to the trial court’s statement, it was not neces sary for the State to prove that the personor agency responsible for the radio broadcast had specific and art iculable f acts that a criminal offense had been or was about to be committed. Neither was the State required to prove that it was more likely than not that Officer Dortch would have stopped the defendant’s car had it not been for the radi o broadcast. Rather, the disposit ive inquiry i n this c ase is whether Officer Dortch had probable cause independentof the information in the radio broadcast to stop the defendant’s car. Whren , 517 U.S. at 819; Vineyard , 9 58 S. W. 2d at 734. U nder Whren and Vineyard , it is irrelevant

whether subjective ly, Officer Dortch w as motivated to stop the defendant’s car because of the ra dio broad cast as lo ng as obje ctively, p robable cause to stop the defendant’s car existed. Whren , 517 U.S. at 813-17; Vineyard , 958 S.W.2d at 734.

Despite the fact that the warrant shows the defendant was arr e sted only5

because of acitizen’s complaint,Officer Dortch testified that he observed the defendant travelingfour to six miles over the twenty-mile-per -hour speed limit and turning ri ght onto another street without sig naling, both of which a re actions t hat would justify a traffic citation. See T.C.A. §§ 55-8 -103, -14 3, -152. If Officer Dortch’s tes timony that he witnessed two traffic violations is believed, he had probabl e cause to stopthe defendant’s car, independent of his s ubjective suspicions that the defendant was driving while intoxicated, and thus, the stop must be d eeme d leg al. Whren , 517 U.S. at 813-17; Vineyard , 958 S.W.2d at 734. If Officer Dortch’s testi mony is not believed, how ever, then the only evidence of why the defendant’s car was stopped is the warrant, which cites only the citizen’s complaint, and thus, the stop must be deem ed illegal.

Unfortu nate ly, we cannot discern from the record whether the trial court gave credence to Officer Dortch’s testimony that he observed two traffic inf ractions. Accordin gly, we remand to allow th e trial judge to make specific findings on the recor d regardingwhether

Officer Dortch saw the defendant commit any traffic infractio ns. These findings will determine wheth er, in fact, Officer Dortch had pr obable cause to stop the defendant’s car, which in turn will dictate the disposition of this case. Once these findings
are made, the clerk is ordered to supp lement the rec ord with these fin dings for our further review.

_______________________________ JOHN H. PEAY, Judge
CONCUR:

______________________________ GARY R. WADE , Presiding Judge

______________________________ JERRY L. SMITH, Jud ge