IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 14, 2013

STATE OF TENNESSEE v. JODY KYLE BANKS

Appeal from the Circuit Court for Van Buren County

No. 2302M Larry B. Stanley, Jr., Judge

No. M2012-02722-CCA-R3-CD - Filed December 18, 2013

The defendant, Jody Kyle Banks, pled guilty to driving under the influence of an intoxicant

(second offense), a Class A misdemeanor, in violation of Tennessee Code Annotated section

55-10-401(a)(1) (2010). He was sentenced to eleven months and twenty-nine days

imprisonment, with fifty days to be served in jail and the remainder of the sentence to be

served on probation. In entering his guilty plea, the defendant reserved, pursuant to

Tennessee Rule of Criminal Procedure 37(b)(2), a certified question of law challenging the

initial stop of his vehicle based on a broken taillight. After a thorough review of the record,

we conclude that this case is governed by the Tennessee Supreme Court’s decision in State

v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), and we accordingly affirm the judgment of the

trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL and CAMILLE R. MCMULLEN, JJ., joined.

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Jody Kyle Banks.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Senior Counsel;

Lisa Zavogiannis, District Attorney General; and Darrell R. Julian, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY
This case stems from a traffic stop initiated based on a broken taillight. Although a

transcript of the hearing on the motion to suppress is not included in the record, the defendant

includes a statement of evidence recounting certain stipulated facts presented to the trial

court at that hearing. The defendant was driving a maroon Nissan Maxima down Highway

111 at around 9:13 p.m. on July 16, 2011 when Officer Michael Brock activated his

emergency lights and stopped the defendant’s vehicle. Officer Brock’s sole reason for

stopping the defendant was that the defendant’s right taillight or brake light had a partially

broken red lens. Although the actual bulb was covered by the intact portions of the lens,

1

white light nevertheless emanated from the broken taillight assembly. Officer Brock did not

have a warrant or other cause to stop the vehicle.

According to the affidavit of complaint, after stopping the vehicle, Officer Brock

noticed the odor of beer and the defendant admitted to having consumed a “Rockstar.” After

the defendant performed unsatisfactorily on field sobriety tests, he was arrested, and a

Breathalyzer test showed that the alcohol concentration in his breath was above the legal

limit.

The defendant was indicted for driving under the influence of an intoxicant in

violation of Tennessee Code Annotated section 55-10-401(a)(1) and for driving with a blood

or breath alcohol concentration of 0.08 percent or greater in violation of Tennessee Code

Annotated section 55-10-401(a)(2). The defendant had a previous conviction under this

statute in 2006.

The defendant moved to suppress all evidence that resulted from the initial stop of the

vehicle. The trial court concluded that Officer Brock had reasonable suspicion to stop the

defendant’s vehicle in order to examine its tail or brake light, and the court denied the

motion.

The defendant ultimately pled guilty to count one and count two was dismissed. In

entering his guilty plea, the defendant reserved the following certified question of law:

Whether the stop of the Nissan Maxima operated by the

Defendant on July 16, 2011 by Officer Michael Brock of the

Town of Spencer Police Department on Highway 111 South in

Spencer, Van Buren County, Tennessee at or near 9:13 o’clock

p.m., and the subsequent observations, search and seizure of the

Defendant by Officer Brock, were in violation of the Fourth

The stipulated facts state that approximately three-fourths of the light was unbroken, although 1

photographs included on appeal appear to show that the intact portion was less than three-fourths.

-2-
Amendment to the Constitution of the United States and/or

Section 7, Article I of the Constitution of the State of Tennessee,

in that (1) the stop of the Defendant’s vehicle was made without

an arrest warrant or other process, (2) the stop of the vehicle was

based upon a partially broken lens[] on the right tail light/brake

light unit that permitted clearly visible white light to emanate

from the damaged area no longer shielded by the missing

portion of the lens but permitted the remaining section of the

lens assembly to be unaffected, and (3) when there were no

other exigent circumstances or grounds supporting the stop of

the vehicle. In the event the stop violated these Constitutional

provisions, all evidence secured by the Officer and his

observations would be suppressed and inadmissible.

ANALYSIS

Under Tennessee Rule of Criminal Procedure 37, an appeal lies from a guilty plea if:

A) the defendant entered into a plea agreement under Rule 11(c)

but explicitly reserved – with the consent of the state and of the

court – the right to appeal a certified question of law that is

dispositive of the case, and the following requirements are met:

(i) the judgment of conviction or order reserving the

certified question that is filed before the notice of appeal

is filed contains a statement of the certified question of

law that the defendant reserved for appellate review;

(ii) the question of law as stated in the judgment or order

reserving the certified question identifies clearly the

scope and limits of the legal issue reserved;

(iii) the judgment or order reserving the certified

question reflects that the certified question was expressly

reserved with the consent of the state and the trial court;

and

(iv) the judgment or order reserving the certified question

reflects that the defendant, the state, and the trial court

are of the opinion that the certified question is dispositive

-3-
of the case.

Tenn. R. Crim. P. 37(b)(2). The defendant entered a guilty plea under Rule 11. The

2

defendant explicitly reserved the right to appeal a dispositive question of law, and the State

and the trial court both consented. The judgment incorporates by reference the certified

question appended to the judgment sheet; the question clearly identified the scope and limits

of the legal issue; the addendum reflects that the question was expressly reserved and that

the State and trial court consented; and the judgment reflects that the State, the defendant,

and the trial court all agreed that the question was dispositive of the case. A question is

dispositive when the appellate court is left with only two choices: affirming the judgment or

dismissing the charges. State v. Robinson, 328 S.W.3d 513, 518 n.2 (Tenn. Crim. App.

2010). The reviewing court is not bound by the agreement that a question is dispositive but

must make an independent determination regarding whether the question is dispositive. State

v. Dailey, 235 S.W.3d 131, 134-35 (Tenn. 2007). In the case at bar, all evidence supporting

the conviction stems from the initial stop of the defendant’s vehicle. Accordingly, we

conclude that the requirements of Tennessee Rule of Criminal Procedure 37(b)(2) have been

met and we review the question presented.

In reviewing a trial court’s judgment in a motion to suppress, “[q]uestions of

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.” State v. Odom,

928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party is entitled to the strongest legitimate

view of the evidence introduced at the hearing and to all reasonable and legitimate inferences

to be drawn from that evidence. State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010). A trial

court’s findings of fact are upheld on appeal unlessthe evidence preponderates against them.

State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000). However, the application of law to the

facts is reviewed de novo with no presumption of correctness, and determining whether

reasonable suspicion existed to uphold a traffic stop is a mixed question of fact and law.

State v. Garcia, 123 S.W.3d 335, 342-43 (Tenn. 2003).

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

the Tennessee Constitution prohibit unreasonable searches and seizures. The activation of

a police car’s emergency lights to stop a vehicle constitutes a seizure. State v. Pulley, 863

S.W.2d 29, 30 (Tenn. 1993). A warrantless search is presumed unreasonable unless

conducted under one of the narrowly defined exceptions to the requirement. State v. Binette,

33 S.W.3d 215, 218 (Tenn. 2000). One such exception is a stop based on either probable

cause or reasonable suspicion that a traffic violation has occurred. State v. Watson, 354

Although the addendum to the judgment recites that the plea was under subsection (e) of Rule 11, 2

this subsection merely requires written records evidencing the plea. 

-4-
S.W.3d 324, 329 (Tenn. Crim. App. 2011) (citing Whren v. United States, 517 U.S. 806, 810

(1996)). The determination of probable cause is a determination of “whether at that moment

the facts and circumstances within [the officers’] knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a prudent man in believing that

the [defendant] had committed or was committing an offense.” State v. Day, 263 S.W.3d 891,

902 (Tenn. 2008) (quoting Goines v. State, 572 S.W.2d 644, 647 (Tenn. 1978)).

Facts which do not rise to probable cause to make an arrest may nevertheless

constitute reasonable suspicion to conduct an investigatory stop. Pulley, 863 S.W.2d at 31

(noting reasonable suspicion a “lower quantum of proof” than probable cause). Reasonable

suspicion is more than an “inchoate and unparticularized suspicion or ‘hunch,’”; instead, it

must be supported by “specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.” Day, 263 S.W.3d at 902-03

(quoting Terry v. Ohio, 392 U.S. 1, 27, 21 (1968)). In determining the presence of

reasonable suspicion, the court must consider the totality of the circumstances, including but

not limited to: objective observation; information obtained from other officers or agencies;

information obtained from citizens; and the pattern of operation of certain offenders. State

v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). The court should also consider the rational

inferences and deductions that a trained police officer may draw from the facts and

circumstances known to him or her. Id.

Tennessee Code Annotated section 55-9-402 provides:

(b)(1) Every motor vehicle shall be equipped with two (2) red

tail lamps and two (2) red stoplights on the rear of the vehicle ...

(2) The stoplight shall be so arranged as to be actuated by the

application of the service or foot brake and shall be capable of

being seen and distinguished from a distance of one hundred

feet (100') to the rear of a motor vehicle in normal daylight, but

shall not project a glaring or dazzling light.

T.C.A. § 55-9-402(b). In addition, “[e]ach lamp and stoplight required in this section shall

be in good condition and operational.” T.C.A. § 55-9-402(c).

In State v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), the Tennessee Supreme Court

considered whether there was reasonable suspicion to stop a vehicle based on a violation of

Tennessee Code Annotated section 55-9-402. In Brotherton, the defendant had a broken

taillight which he had attempted to repair with red taillight tape, a translucent tape sold for

such purpose. Brotherton, 323 S.W.3d at 869 & n.3. The tape covered more than half of the

-5-
lens, but was weathered and had a hole in it which permitted bright white light to shine

through. Id.

In Brotherton, the Court held that the proper inquiry was whether law enforcement

had an articulable and reasonable suspicion that the taillight violated Tennessee Code

Annotated section 55-9-402. Id. at 871. The Court concluded that there was reasonable

suspicion to stop the vehicle because the repair permitted a bright, white light to shine

through the tape, and the taillight therefore “did not appear to be in good condition for the

purpose of Tenn. Code Ann. § 55-9-402(c).” Id. at 871-72. The Court also concluded that

the white light provided an articulable and reasonable suspicion that the driver had violated

the statute because the taillight was not red as required by Tennessee Code Annotated section

55-9-402(b)(1). Id. As a third reason to initiate an investigatory stop, the Court concluded

that the officer had reasonable suspicion subsection (b)(2) had been violated because the light

coming through the tape was described as “glaring” by the officer. Id. The Court’s analysis

also made reference to United States v. Johnson, 242 F.3d 707 (6 Cir. 2001), in which the

th

Sixth Circuit upheld a traffic stop based on a taillight which was missing a piece of the red

lens. Johnson, 242 F.3d at 710.

We conclude that the case at bar is indistinguishable from Brotherton. Under

Brotherton, Officer Brock had reasonable suspicion to believe that the defendant had violated

Tennessee Code Annotated section 55-9-402(b)(1), requiring that the taillight be red, and

Tennessee Code Annotated section 55-9-402(c), requiring that the taillight be in good

condition. See Brotherton, 323 S.W.3d at 871-72. Accordingly, there was no violation of

the right against unreasonable searches and seizures.

CONCLUSION

Because we conclude that law enforcement had a reasonable suspicion that the

defendant had violated Tennessee Code Annotated section 55-9-402, we affirm the judgment

of the trial court.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

-6-