# FILED
December 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1998 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9712-CR-00590

) ) Putnam County v. ) ) Honorable John Maddux, Judg e ) Honorable John Turnbull, Judge STUART ALLEN JENKINS, ) ) (Certifi ed questi on of law) Appellant. ) For the Appellant : For the Appellee : William A. Cameron John Knox Walkup 100 S. Jefferson Avenue Attorney General of Tennessee Cookeville, TN 38501 and Daryl J. Brand Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493 William Edward Gibson District Attorney General and Shawn Fry Assistant District A

ttorney General 145 S. Jefferson Avenue Cookeville, TN 38501-3424

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

The defendant, Stuart Allen Jenkins, w as convicted upon his plea of guilty in the Putnam County Crimi nal Court to driving under the influence of an intoxic ant (D.U.I.), first offense, a Cl ass A misdemeanor. He was sentenced as a Range I, standard offender to eleven months and tw enty-nine days confinement i n the Putnam County jail with

all but forty-eight h ours suspended and the remainder t o be served on probation. He was fined thr ee hundred and sixty dol lars. He appeals as of rig ht upon a certified question of law

. See T.R.A.P. 3(b); Tenn. R. Cri m. P. 37(b). The state qu esti on s w he th er

th e d ef en da nt

ha s p ro pe rl y r

es er ve d a ce rt if ie d q ue st io n of l aw . We affirm the trial court.

The defendant was originally charged with D.U.I., D.U.I. per se, simple possession of marijuana and possession of drug paraphernalia. The charges were brought after a police officer st opped the defendant upon a suspicion of D.U. I. based upon an anonymous informant’s repor t and the officer’s personal obser vations. The defendant filed a motion to suppress all evidence obtained after the stop , claiming that the stop was unconstituti onal because the officer lacked specific, articulable facts on which to justify it . The trial court denied the d efendant’s motion, and the defendant entered into a plea agreement w hereby he pled guilty

to D.U.I. in exchang e for having the remaining charges di smissed.

The judgment form filed January 6, 1998, does not reflect that the defendant reserved a certified q uestion of law, nor does it incorporate by reference an order setting forth a certified question of law. Ho wever, the record r

eflects that on November 14, 1997, the date that the trial court accepted the defendant’s guilty plea, the trial court entered an ag reed order relative t o the certified question of law . The order provides as follows:3 This matter came on to be heard on the 30th d ay of September, 1997 and Oct obe r 30, 1997, upon the Defendant’s Motion to Suppre s s, said Motion having been heard by the Court and over ruled by Judge Joh n Turnbull. The parties agreed at the time that if the Motion to Suppress had been sustained it would hav e been dispositi ve and determi native of the case and the case against the Defendant w ould have been dismissed. Following that order overruli n g the Motion to Suppress the Defendant on November 14, 1997, entered a plea of guilty to DUI First Offence [sic] reserving his right to appeal upon the issue of the suppression moti on and all parties un ders tood that the appeal was as to the correctness of the overruling of the Motion toSuppress and if incorrect would have resulted in a dismi ssal of the Defendant and would have been dispos itive of the case. Be it the re fore, ORDERED, ADJUDGED AND DECREED that all parties, including the Court, ag ree that the issue on appeal is the correctness of the order overruling the Motion to Suppress and that said Motion would be dispos itive of this case. Further, by agreement Judge John Maddux is to sit by int erc hange upon taking the plea of g uilty and entering this order by prior agreement with Judge Jo hn Turnbull. The appeal will be from a rul ing issued by Judge John Turnbull. The initial question before us is whether the defendant has pr operly reserved a c

ertified question of law to inv

oke our jurisdiction.

In State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988), our supreme court succinctly specified the requirements for reserving a certified question of law so as to invoke appellate jur isdiction: Regardles s of wh at has appeared in prior petitions, orders, colloquy in open court or otherwise, the final order or judgment from which the time begin s to run to pursue a T.R.A.P. 3 appeal m us t contain a statement of the dispositive certified question of law reserved by defendant forappellate review and the question of law must be st ated so as to clearly

identify the scope and the limits of the leg al issue reserved. Our supreme court has had occas ion to show that stric t adherence to the Preston requirements is expec

ted. See State v. Pendergrass , 937 S.W.2d 834, 836-37 (Tenn. 1996). In the present case, the final ju dgment does not contain a statement of the dispositive certi

fied question of law. Likew ise, the agreed order re lating to the4

dispositive nature of the moti on to suppress fails to specify in any manner the scope or limits of the legal issue reserved. We view the order ’s statement that the issue on appeal is the correctness of the order overruling the motion to suppress as not descriptive of any is

sue in the case. Under these circumstances, we can on ly say that the defendant failed to follow the proc edural requirements in Preston . Counsel should take Preston to heart.

On the other hand, we note that the motion to suppress raises several issues as follows: There were insufficient specific and articulable facts to pul l the Defendant over and effect the stop made by the officer. Therefore, everything from the illegal stop forwar

d was fruit of the poison tree and should be suppr essed. Further, the Defendant was not mirandized [sic] and any statements the D efendant made at the tim e of th e stop without being mir andized [sic] should be suppressed. The Defendant would aver that on March 24, 1997, on I 40 [sic] w

est of the 284 mi le ma rker Trooper Reaker Bass pulled the Defendant over w ithout sufficient reason. From the whole record, we can determine that the dis positive question of law relates to whether the trooper had re asonable suspicion to believ e that the defendant was driv ing under the influence of an intoxic ant so as to justify his s topping the defendant’s car under the Fourth Amendment of the United S tates Constitution and Arti cle I, Section 7 of the Tennessee Constitution.

Thus, although Preston has not been followed, the rec ord discloses that the parties and the trial c ourt agreed that the issue o f the legality of the stop of the c ar was dispos itive of t he case a nd was to be appeale d by the de fendan t. Moreove r, we believe that the record reflects that the issue is finite in scope, adequa tely stated, and is dispositive of the case. In this respect, the record contains the info rmation of concern in Preston , although it does not do so i n one order or in the judgment . In order for substance to prevail ov er form, we will c

onsider the issue presented by the defendant.5 At the suppression hearing , Tennessee Highway Patrol Trooper Reaker Bass testified that on March 24 , 1997, the patrol dispatcher notified him to be on the lookout for a gold Bronco w ith license plate number HF W 598. He said that the dispatcher advised him tha t it had been reported as possi bly involving a drunk driver. The vehicle was last seen westbound on Interstate 40 around mile marker 299. Trooper Bass testified that ten to fifteen minutes later, he got behind a gold Jeep Cherokee with the same pla te number going west o n Interstate 40 around mile mark er 285.
Trooper Bass testified that he obser ved the vehicle for appr oximately one mile and that it was w

eaving excessiv

ely in the roadway . He explained that this meant more than twice and said tha t “when they continuous ly do it, that’s ex cessive.” He then stopped the defendant for suspicion of driving under the influence. On crossexamination, he acknowl edged that the vehicle’s weaving did not go out of the defendant’s lane of traffic. Also, he ack nowledged that photograph s represented to be of the vehicle he stopped show ed a vehicle that looked s ilver, not gold. The de fendant testified that his vehicle is a silver Jeep Cherokee, although he acknowledged that his license plate number matched the one Trooper Bass received.

The record also reflects that the relevant highway patrol dispatch log w

as submitted to the trial court as a supplement to the record. The discussion among the trial court and the attorneys regarding the log indicates that two calls regarding a vehicle with the de

fendant’s li cense plate n umber were received, one being a 9 -1-1 call from a cellular telephone. Unfortunat ely, the record does not c ontain either the photographs of the defendant’s vehicle present ed at the hearing or the dis patch log that was submitted as a supplemental exhibit.6 The trial court found that the matchi ng license plate number and excessive weav

ing were sufficient to j ustify the trooper’s stop of the vehicle in terms of him having reasonable su spicion based upon articulabl e facts that the defendant was driving under the influence of an intoxicant, giv en the informant’s information and the trooper’s observations . We agree with the trial court.

In reviewing the trial court’s denial o f the suppression motion, we ac cept the trial court’s findings of fact unless the evidence pr eponderates otherwise. See State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997). However,the law that was applied to those facts is rev iewed de novo
. Id

.
The police may stop a vehi cle if they have reasonabl e suspicion based upon specific and articulable facts that an occupant is vi olating the law. See United States v. Brignoni-Ponce , 422 U.S. 873, 881, 95 S. Ct. 2574, 2580 (1975); Hughes v. State , 588 S.W.2d 296, 305 (Tenn. 1979). Reasonable suspic ion may be based upon an anonymous caller’s tip provided that the circumstances show that the inform ation is sufficiently reliable - - a reliability that is less than that req uired for probable cause. See Alabama v. White , 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990); State v. Pully , 863 S.W.2d 29, 32 (Ten n. 1993).

As Pully indicates, the analysis involves consideration of the informant’s basis of knowledge and rel iability and of any cor roborating circumstanc es known to the police. Id . In the present case, althoug h there is no expressed s tatement of personal knowledge by the informant, the proximity in the time of the call to Trooper Bass’ sighting of the vehicl e, the specific location of the v ehicle provided by the informant, and the nature of the offense reflect that the infor mant had firsthand knowledge o f the matters reported to the polic e. Id . Likewise, the detail ed description of the vehicl e and its particular locati on as corroborated by Trooper Bass’ observations l end credibility to7

the informant. Finally, th e weaving observ ed by Trooper Bass, albeit within the defendant’s lane of traffic, is another ci rcumstance that lends credence to the potential for a drunk driver as s

tated by the informant. Moreov er, with the exist

ence of the circumstances, the potential for serious harm created by a drunk driver on the i nterstate is a factor that supports jus tification for the investigatory stop. See Id . at 33-34.

We conclude that the trial court correc tly denied the defendant’s motion t o suppress. The judgment of convi ction is affirmed.

________________________________ Joseph M. Tipto n, Judge

CONCUR:

_________________________ Paul G. Summe rs, Judge

_________________________ Joe G. Riley, Judge