# FILED
October 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JUNE 1998 SESS ION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9710-CR-00438

) ) Greene County v. ) ) Honorable James E. Beckner, J udge ) HASSON WALLER, ) (Certifi ed questi on of law) ) Appellant. ) For the Appellant : For the Appellee : Robert C. Newton John Knox Walkup 900 Anderson Street Attorney General of Tennessee Bristol, TN 37620 and Clinton J. Morgan Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 C. Berkeley Bell, Jr. District Attorney General and Eric Christiansen Assistant District A

ttorney General 109 South Main Street Greeneville, TN 37743

OPINION FILED:____________________ AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Hasson W aller, was convicted upon his pleas of guilty in the Greene County Criminal Court of the offenses of possession with intent to sell marijuan a, a Class E felony, and poss ession of a firearm in the com mission o f a felo ny, a Class E felony. The defendant w as sentenced as a Range I, st andard offender to concurrent sentences of one year, one hundred ten days to be served in the county jail and the remainder on probation. H e was also fined two thous and dollars. The defendant appeals as of right upon a certif ied question of law that is dispositive of this
case. See T.R.A.P. 3(b); Tenn. R. Cri m. P. 37(b).

The defendant contends that the trial court erred in refusing to suppress the contraband found as the result of a se arch, conducted after he was placed in custody, of the cars over which he asserted ow

nership. The trial court found that the search of the cars did not v iolate the defendant’s rights under the Fourth Amendment of the United States Constituti on and Article 1, Section 7 of the Tennessee Constitution because the defendant consented to the sear ch and the police had probable ca use to arrest the defendant. The state conten ds that the appeal does not present a properly
ce rt if ie d q ue st io n of l aw an d t ha t, in an y e

ve nt , t he tr ia l c ou rt 's fi nd in gs ar e c or re ct . We conclude that the defendant's Fourth Am endment rights were not violated and affirm the decision of the trial cour t.
The following facts were introduced during the motion to suppress hearing. On August 16, 1996 , the defendant and his cousin, Eri c Waller, arrived at Malone's Wrecker Service in a r ed Ford Escort to pick up a black Nissan that had been repaired. The defendant wanted to tes t drive the car before pay ing for it, but Don Malone, the owner of the wrecker service, w ould not let the men leave w ith the car without paying for i

t. Mr. Malone offered to accompany them on the test drive, but the3

defendant argued that he did not w ant him along for the test dri ve. A heated argument ensued, and the police were called.

Greeneville Police O

fficer Pat Hankins and an auxi liary officer responded to a request from Officer Crum, w ho was already at the s cene, to assist with a disturbance at the wreck er service. Officer Hankins testified that when he arrived at the wrecker servi ce, he saw the defendant in a heated d iscussion with the ow ner and Officer Crum. Officer Hankins tes tified that before Officer Crum left to r espond to another call, Officer Crum tol d him that he saw Eric Waller leav e in the red car and return a short time later on foot.

The dispute was resolv ed when the defendant agreed to all ow Mr. Malone to accom pany Eric W aller on t he test d rive. Off icer Hanki ns testif ied that while the t wo were out on the test driv e, he spoke with the defendant in an attempt to calm the situation. He testified that the defendant said that the car broke down after returning from Knoxville wher

e he had visited his g irlfriend.

Officer Hankins testified that after Mr. Malone and Eric Waller retur ned from the test drive , Mr. Malon e told him that he sp otted th e red car a quarter-m ile down the road. The officer said that he then as ked Eric Waller where he had been w hen the car broke down. He stated that Eric Waller told him that th ey had been to a basketball game in Knoxville.

Officer Hankins testified that he a sked the defendant and Eric Waller for identification, and they g ave him their drive r's licenses. He sai d that he wanted to check discreetly for out standing warrants, b ut he could not because they w ere standing next to him. He testified th at in order to have some pr ivacy, he told them that he had to respond to a call at a market down the road. While at the market and talk ing to the4

dispatcher on the telephone, he sai d that his partner, the aux iliary officer, saw

the defendant and Eric Waller drive away from the wrecker serv

ice. The officers drove to where the red car w

as reported to have been park ed and saw the defendant in the black car and Eric Waller in the re d car.

Officer Hankins testified that he a sked Eric Waller to get out of the red car. He said that he then handcuffed Waller, told him that he was not under arr est, and put him into the back of his poli ce cruiser. Officer Hanki ns then approached the defendant, asked him to get out of the blac k car, handcuffed him, told him that he w as not under arrest, and put him in the back of Off icer Crum's cruiser, who had come back to the scene.

Officer Hankins testified that he a sked Eric Waller for permission to search the red car. He s aid that Eric Waller told him that the defendant w as the owner. Officer Hankins then asked the defendant, "Do you have any probl em if we look in the car?" to which the defen dant ans

wered that he di d not. Of ficer H ankins s

aid that he left the auxiliary officer with the defendant in case the defen dant wanted to retract his permission for the search. H e admitted that he did not tell the defendant that the defendant could stop the search at any time.
Officer Hankins testified that he got the keys out of the ignition of the red car, opened the trunk, and immediate ly smelled marijuana. H e stated that he found approximately six pounds of marijuana wrapped in a garbage bag. He said they also found a gun inside a suitcase i n the trunk. He said a secon d gun was found under the driver's seat of the red car. Officer Hankins testified that the black car was searched, and a saran, such as would be used to wrap a cigar ette, was found in plain v iew. Officer Hankins testified that after findin g these items, he called i n a report, and Eric Waller and the defendant were transported to the Greeneville poli ce station.5 At the conclusion of the hearing, the trial court overruled the defen dant's motion to suppress the evide nce seized, concluding that there was probable c ause and exigent circumstances

and that the defendant had consented to the sea rch. The trial court found that the officer's reasona ble suspicion had matured to probable cause because the defendant drove away after surrendering his driver's license to the officer. The trial court found exigent circumstances to search the vehicles because the y were mobile and were subject to being removed before a w arrant could be obtained.
On appeal , the tr

ial cou rt's fi ndings

of fact at

the conclusion of a suppression hearing w ill be upheld unless the ev idence preponderates otherw ise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the burden of demonstrating that the evi dence preponderates against th e trial court's factual findi ngs. Id . However, the application of the law to the facts as determined by the trial court is a question of law whic

h is reviewed de novo on appeal. State v. Yeargan , 958 S.W.2d 626, 628-29 (Tenn. 1997).

I

Preliminarily, the state contends that the defendan t has failed to comply with the prerequisi

tes for appellate review of a certified, dispositiv e question of law. The state argues that (1) the defendant's question does not clear ly identify the scope and limits of the legal issue that is reserved, (2) the question does not contai n the reasons relied upon by the defendant at the s uppression hearing, (3) the judgment is confusing and does not contain a statement of the cer tified question, and (4) the record does not contain all of the proceedings below that bear upon the meri ts. With respect to the record, the state argues that the tape recording and th e transcript of the conver sation between the defendant and the police officer have not been provided w ith the record.6 In pertinent part, Rule 37( b), Tenn. R. Crim. P., prov ides for an appeal in a criminal case under the following circumstances:

(2) Upo n a plea o

f guilt y or nol o conten dere if: (i) defendant entered into a plea agreement under

Rule 11(e) but explicitly r

eserved withthe consent of the State and of the court the right to appeal a certified question of law that is dispositive of the cas e; or

. . . (iv) defendant explicitly res erved with the consent of the court the right t o appeal a certified question of law that is dispositive of the case. The 1997 Adviso ry Commission Com ment to this Rule states the fo llowing:

In order for an attorney to perfect an appeal under either of these two (2) sections, the attorney must be certain that the application fully comports with the requirements for this ty pe of an appeal as set forth by the Tennessee Supreme Court in its decision of State v. Preston , 759 S.W.2d 647 (Te nn. 1988). Failure to follow the dictates of t he Preston decision could result in the dismissal of the appeal. Rule 3(b), T.R.A.P., pr

ovides that

an appeal as o

f right by a defendant li es from a judgment of conviction upon a g uilty plea "if the defendant entered into a plea agreement but explicitl y reserved with the consent of the state and the tri al court the right to appeal a certifie d question of law disposi tive of the action."
Our supreme cou rt addressed th e proper proced ure for reserving a certified question of law in State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988). Preston requires that the certified question "be so stated as to clearly identify the scope and the limits of the legal i ssue reserved." Id . For issues invol ving the validit

y of searches, "the reasons reli ed upon by defendant in the trial court at the suppression hearing must be identified in the statement of the certified questi on." Id . Finally, "the order must state that the certified question was ex pressly reserve

d as part of the plea agreement, that the State and the tr ial judge consented to the r eservation and that the State and the trial judge ar e of the opinion that the question i s dispositive of the case. " Id

.7 The certification order states as follows: The State and the Defendant affirm that the Defendant, pursuantto [Tenn. R. Crim. P. ] 37( b)(2), has expl icitl y reserved with the express c onsent of the State certified question(s) of law with regard to the Defendant's [detention] by t he Greeneville Police officers and subsequent search of hi s automobi les and the seizure of evidence subject to this indictment. The question of law to be certified for review is as follows: Did the trial court err i n n o t suppressing any and all evidence seiz

ed from the defendant's automobiles on or about August 16, 1996in the initial deten ti on of the defendant and his s ubsequentconsent to search his automob ile s violated the defendant's rig hts under the Fourth Amendment of the United States Co ns titution and Article 1, Se cti on 7 of the Constitution of Tenne s see, being an unreasonable seiz ure of his perso n and an unlawful search of his automobiles? Pursuantto Sta te v. Preston , 759 S.W.2d 647 (Te nn. 1988), the State, the Defendant, with ex press approval of the Court

. The State and this Honorable Court hereby expressly consentto the reservation of thi s certif ied quest ion of la w. Further, the State and this Honorable Court av er and affirm that they are of the opinion that this question is dispositive o f the case. S pe cifically, this Cour t, the State, and Defendant affirm that if the Appellate Court finds in the Defendant's favor with regard to this cert ified question, then the subject prosecution must be dismissed. Unquestionably, the order could have and should have been more detailed. However, we do not view it to be so deficient as to req uire a dismissal of the defendant's appeal. The order states the general claim by the defendant relative to his dete ntion and search of his vehicles. It also states that the right to appeal a certified question of law that is dispositive of the case w as explicitly r

eserved with the cons

ent of the state and the trial court.

In Preston , our supreme court stated that "the reasons relied upon . . . must be identified." 759 S.W.2d at 650. In the present c ase, the certified question gives as reasons for the violation of the defendant's ri ghts under the United States8

Constitution and the Tennessee Cons titution the "unreasonable seizure of his person and an unlawful search of his aut omobile." In his motion to suppr ess, the defendant gave the same reasons but pr ovided additional detail,including (1) that the detention was not based on probable caus e or the commission of a criminal offense in the presence of the police officers, (2) that the search was w ithout a warrant or ex

igent circumstances, (3) that the search was without probable cause, (4) that the search violated the def endant' s expecta tion of p rivacy, and (5) that th ere was not effect ive consent given for the sear ch given the totality

of the circumstances.
Ideally, the certified q uestion should have giv en the detailed reasons upon which the defendant relied. H owever, we rec ognize that the questi on is just that and not a brief presented to the court.The certified question contai ns a description of the conduct that the defendant claims v iolated his rights and provides the reason that the conduct violated his ri ghts. We conclude that the question is sufficient to identify the scope of our review.

With respect to what the state calls the confusing judgment, we note that the record reflects that the defendant's motion to suppress was heard and denied on January 6, 1997. The technical record contains an order certifying the questi on of law and stating that it is an addendum to the judgment order. Th e addendum states that it was entered on January 24, 1997. However, the clerk stamped it as filed on M ay 19, 1997. We believe the date typed in the addendum w as erroneously retained during word processing and can be safely ignored. The defendant entered his guilty pl eas and
re ce iv ed ju dg me nt

on Ma y 1 9, 19 97 , t he

sa meda

y t ha t t he ad de nd um wa

s f il ed . We conclude the judgment order c ontains a statement of the certified q uestion.
Finally, with r

espect to the record being incomplete, we note that the tr ial court relied on the recorded conversation between Officer Hankins and th e defendant in9

order to determine that consent was given for the sea rch. Neither this tape no r its transcript is part of the r ecord brought to this cour t. The Preston court stated that the defendant has the burden of en suring that "the record brought to the appellate court contains all of the proceedings below that bear upon w hether the certified questio n of law is dispositiv

e and the merits of the question c ertified." 759 S.W.2d at 650. However, we bel ieve that the certified q uestion is dispositiv e and can be decided on its merits without resor

ting to details of the recor ded conversation.

II The defendant contends that he was unlaw fully detained through an i llegal arrest by the police. He asserts that the evi dence obtained by the search s hould be suppressed because the search w as the result of an illegal arrest and the consent gi ven was coerced giv

en the circumstances of the ill egal arrest. The defendant arg ues that when he was handcuffed and placed in the police cruiser, there was not proba ble cause to arrest him. The state contends that there was probable c ause to detain the defendant and that he voluntarily gave effective consent.
While operating a motor vehicle, the driver is required to have in his immedia te posse ssion a val id operat or's licen se. T.C.A . § 55-50- 351. Fail ure to have possession of an operator's li cense is a Class C misd emeanor, and any law enforcement officer is empowered to ar rest any person found viol ating this statute. Id

. Officer Hankins testified that he thought that the defendant and Eric Waller were “either wanted or up to something that they s houldn't be." This suspicion10

was based on hearing that Eric Waller moved the red car, know ing that their stories conflicted, and seeing that the defenda nt left the wrecker service without his driver's license and drove to the red car. Officer Hankins admitted that at th e time he took their driver's licenses , the two had not committed any crimes. However, when Officer Hankins saw the defendant drive away from the wrecker service, he had probable cause to arrest the defendant for driving without having immediate possession of his driver's license. See T.C.A. § 55-50-351.

The analysis of any war rantless search must begi n with the proposition that such searches are per s e unreasonable under the Fourth A mendment to the United States Constitution and Article I, Section 7 of the Te nnessee Constitution. This principle against w

arrantless searches is

subject only to a few s pecifically establishe d and well-delineated ex

ceptions. See Katz v. United States , 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967); State v. Tyler , 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980). Before the fruits of a warrantless search are admissible as evidence, the state must establish by a preponderanc e of the evidence that the search falls into one of the narrowly draw

n exceptions to the war rant requirement. State v. Shaw , 603 S.W.2d 741, 742 (Tenn. Crim. App. 1980).

A warrant is not needed when there is a consent that is "unequivocal, specific, intelligentl

y given, and uncontamin ated by duress or coercion." State v. Brown , 836 S.W.2d 530, 547 (Tenn. 1992). Thus, the question becomes whether the consent to the search in this case was given v

oluntarily, a questi on that is determined by examining the facts. State v. Jackson , 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993).11 In this case, the defendant was in custody in the backseat of a police cruiser. Officer Hankins asked the defendant, " Do you have any problem if we look in the car?" The defendant answered that he did not. The trial court found that the facts showed that the consent w as freely given. The de fendant relies on the assertion that the arres t was unlawf ul, and th erefore , the con sent was no t valid. Be cause we ha ve concluded that the arrest w as based upon probable cause, w e conclude that the search, based upon the consent g iven after a valid arr est, was reasonable and di d not violate the defendant's Fourth Amendmen t rights.

In consideration of the foregoing and the record as a whole , the judgments of conviction ar e affirmed.

______________________________

Joseph M. Tipto n, Judge

CONCUR:

_____________________________ John H. Peay, Judge

_____________________________ David G. Hayes, Ju dge