### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J uly 16, 2003 STATE OF TENN ESSEE v. CHARLES R. PALMQUIST Direct Appeal from the Criminal Court for P utnam County No. 01-0716 John Turnbull, Judge

No. M2002-01047-CCA-R3-CD - F iled October 13, 2003

Defend ant, Charles R

. Palmquist, pursuant to a neg otiated p lea ag

reemen t, pled g uilty to DUI first offense and reserv ed a cer

tified que stion of la

w for ap peal pur suant to Te

nn. R. Crim. P. 37(b)(2)(i). After a review of the recor d and the briefs of the parties, we affirm the judgment of the tri al court

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined. William A. Ca

meron, Co okeville , Tennes see, for the appe llant, Cha rles R. Pal

mquist.
Paul G. Summers , Attorne y General and Repor

ter; Eliza beth B. M arney , Assis tant Attorney Genera l; Will iam Ed ward Gibson, District Attorney General; Thomas Tansil, Assistant District Attorney General, for the appellee, the State of Te nnessee. OPINION The certified question

of law is set forth in an order signed by the

trial court and approved for entry by D efenda

nt’s c ounsel an d th e Assista nt Distric t Attorne

y General . The ord

er state s in pertine nt part tha

t the issue is: [W]hen the Defendant was stopped on July 15, 2001, by Trooper R. C. Christian, who was conducting a roadblock in Putnam County , Tenne ss ee, who pursued the Defend ant, who he thought was evading the roadblock , whether that constituted an illegal arrest and searc h and seizure thereby

necessitating all the evidence de rived the refrom being suppressed. . . . Furthe r, the issue is whether this stop fits within the prohibition of the Supreme Court of Tenness ee in the

case of State v. Downey , 945 S.W.2d 102 (Tenn. 1997), and State v. Hicks , 55 S.W.3d 515 (Tenn. 2001).-2-

(Emphasis added).
Defendant

f iled a pretrial motion to suppress all evidence obtained by the State due to an unconstitutional stop and seizure of Defendant . The only witness to testify at the suppression hearing was Troo

per R. C. Christian of the Tennessee Highway Patrol. In its ruling, the

trial court specific ally

and unequivocally f

ound that Trooper Ch ristian was a credible witness, and the court believed his testimony. Trooper Christian ’s testimo ny r

eveals t he follow ing facts. On the ev ening o f July 15, 2001, Trooper Christian and other officers were conducting a roadblock as a driver’s license che ckpoint on Highway

70 in Putnam County

near Mon

terey . Just

before 8:30 p.m., it was “beginning to g et dark” and Christian observed Defendant’s vehicle with its headlig hts on, coming tow ard the roadblock approximately 0.8 to 0.9 miles away , tra vel ing in the westbound direction. Defendant made an abrupt left turn off of Highwa y 7 0, and then backed out onto Highway 70 headed in the eastbound direction, away from the roadblock. The lights in Defen dant’s veh icle were turned off as he turned his vehicle around. The location where Defendant turned

around was 0.6 miles from the roadblock.
At the urging of his supervisor, L ieutenant Shute, Christian got into his vehicle to pursue Defend ant. Christian testified that the only reason he pursued Defenda

nt was becaus e Defendant was driving without his headlights on at a time that the law requires headlights to be turne d on . From the pr oof it is evident that Christian was relying upon Tenn. Code Ann. § 55-9-406(a), which providesthat: (a) The headlights of every motor vehicle shall be so constructed, equipped, arranged, focused, aimed, and adjusted, that they will at all times mentioned in § 55-9-401, and under normal atmospheric conditions andon a level road produce a dr iving light sufficient to render clear ly discernible a pe

rson two hundred feet (200’) ahead, but shall n ot projec t a glar ing or da zzling lig ht to persons in front of suc h h eadlights. Such headlights shall be display ed during the period from one-half (1⁄2) hour after sunset to one-half (1⁄2) hour be fore sunrise , duri ng fog, smoke, or rain a

nd at all o ther time s when the re is not sufficient light to render clearly discernible any

person on the road at a distance of two hundredfeet (200’) ahead of such vehicle. Tenn. Code Ann. § 55-9-406(a) (1997). Christian stopped D efenda nt a short distance after b eginnin g the ch ase . Defenda nt was behind another veh icle “that ha d slowed h

im up.” B y th

e time Chr

istian stop

ped Def endant, Defendant

had already

turned his headlights back on. Christian initially spoke to Defendant about driving without h is lights on. This led to Christian’s observation of Defendant’s apparent intoxication, the failure of sobriety tests, and De fendant’s subsequent arrest for DUI

.-3-

The State conceded at the suppression hearing that the d river’slicense

checkpoint roadblock was an “illeg al” one i n that it did n ot comply with court rulings on proper constitutional procedures for roadblocks. See State v. Hicks , 55 S.W.3d 515 (Tenn. 2 001); State v. Downey , 945 S.W.2d 102 (Tenn. 1997). Ho wever, Christian testifie d on cross -examinat ion th at the stop of Defendant’s vehicle was onlybecause

Defend ant was illegall

y op erating

his vehic le without

its headlights on, and notbecause

Defend ant had in

tentiona lly a voided the

roadbloc k. The pa

rties sti pul ated into the record Department of Safety

General Order 410. As pertinent to the case on appeal , th is General Order contains the provision that “[a] motorist who chooses to avoid a roadblock should be allowed to proceed unless traffic violations are observed or proba ble caus e exists to take other action.” Dept. of Safety Ge

neral Order 410, Section I X, H.3 (August 31, 2000) (emphasis added). Trooper Christian did not know the o fficial time of sun set on the

date of Defe ndant’s a rrest, buthe clearly

testified that at the time he observed Defendant, it was dark e nough t o require headlig hts to be turned on, and all other vehicles approaching the roadblock had their lights turned on. The trial court made a specific factua l finding that Troo per Chris tian stopp ed Defe ndant bec ause of a violation of the moto

r vehicl e light la

w, Tenn. Code Ann. § 55-9-40 6, and not because Defendant

had avoided the roadblock. The trial court ruled that the stop of De f endan t was not unconstitutional and accordingly denied Defendant’s motion to suppress evidence. ANALYSIS The findings of fact made by the trial court at the hearing on a motion to suppress are binding upon this court unl ess the evidence contained in the record pre ponderates against them. State v. Ross , 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fa ct, is able to assess the credibi lity

of the witnesses, determine the weight and value to be afforded the evidence and resolve any conflicts in the evidence. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The prevail ing par ty is entitled t

o the stro ngest le gitimate

view of th

e evidence and a

ll reason able

inferences drawn from that evidence. State v. Hicks , 55 S.W.3d 515, 521 (Tenn. 2001). Howeve r, this court is not bound by the trial court’s conclusions of law. State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998). The application of the la

w to the facts found by

the trial court are questions of law that this court reviews de novo . State v. Daniel , 12 S.W.3d 420, 423 (Ten n. 2000). The de fendant has the burden of establishing that the evidence contained in the record preponderate s against the findings of fact made by the trial court. Braziel v . State , 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).
It is well-se ttled that an automo

bile stop c onstitutesa

seizure within the meaning of both the Fourt h Amendment of the United States Constitution and Article I, section 7 of the Te nne sse e Constitution. State v

. Harper , 31 S.W.3d 26 7, 271 (Te nn. Crim. A

pp. 2000) . A minor tr

affic violation constitute s probabl e cause for an in vestiga tory st op of a veh icle. State v. V ineyard , 958 S.W.2d 730, 734 (Tenn. 1997). The fact that a reasona ble police officer might not have stopped the vehicle for the alleged traffic violation does not render the stop illegal. See Whren v. United States , 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) . Howeve

r, the of ficer mu st have a

ctually observed the alleged violation upon which the stop was based. Id

.-4-

Defen dant

argues that the motion to suppress should have been gr anted because t

h e roadblock was conducted

in an unconstitutional manner. He relies upon State v. Hicks , 55 S.W.3d 515 (Tenn. 2001) and State v. Downey , 945 S.W.2d 102 (Tenn. 1997). In its brief on appeal, the Statedoes not mention these cases, much less directly addr

ess the effect, if any , of these cases on the issue raised on appeal. Nevertheless, we conclude tha t Defendant’s reliance on Hicks and Downey is misplaced. At the trial cou rt le vel, the State conceded that the roadblock was conducted in an unconstitutional manner according to the holdings in Hicks and Downey

. Procedu ral req uiremen ts for roadbloc ks set for th by the supre me court werenon-existent in this roadblock. Notwithstanding the roadblock’s noncompliance with constitutional safeguards, the evidence clearly

shows that Defendant

was “se ized” bec ause pro

bable ca use existed

th at he was operating his vehicle in violation of the law a pproximate

ly 0 .6 miles away from the r oadblo ck and was headed in a direction away from the roadblock.
Defendant

indicates in his brief that

he supplemented the appellate record with a “la te filed” exhibit wh ic h d em on st ra te s t ha t s un se t i n M on te re y, Tennessee, on July 15, 2001, was at 7:59 p.m

. Defendant

argues that since he was not stopped by Troope r Christian until 8:30 p.m., Defendant could not have violated the light law until after 8:29 p.m., when his lights were a lready ba ck on. This document is not in the recor d. Even if it was in the

record , we coul d not consi der it be cause it was not made an exhibit in the trial court. “The inclusion of a do cument in what ha s been commonly

referred to as the ‘technica l recor d’ will not , as a matter of law, p ermit this C ourt to consider the document when it has not been i n troduced as evidence or authenticated by the trial court.” State v. Cooper , 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987). Under the proper standard of

review, t`he r

ecord shows that T

rooper C hristian h ad proba ble cause to pursue and stop Defendant away from the roadblock. The fact that Trooper Christian was standing at a cons titutional ly “illegal” roadblock at

the time he

observe d Defen dant’s c onduct away from the roadblock is not significant to the resolution of the ce rt if ie d q ue st io n o f l aw . A cc or di ng ly, Defendant is not entitled to relief in this appeal. CONCLUSION The judgment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE