        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   May 17, 2011 Session

       STATE OF TENNESSEE v. BERNARDO ACUNA RODRIGUEZ

               Direct Appeal from the Circuit Court for Warren County
                       No. M12423      Larry B. Stanley, Judge


               No. M2010-02450-CCA-R3-CD - Filed February 13, 2012


Defendant, Bernardo Acuna Rodriguez, was indicted by the Warren County Grand Jury for
second offense driving on a revoked license. Prior to trial, Defendant filed a motion to
suppress evidence obtained as a result of the arresting officer’s stop and seizure of
Defendant. Following a hearing, the trial court granted Defendant’s motion, and as a result,
dismissed the indictment. The State now appeals. After a review of the record, we conclude
that the officer’s stop of Defendant was constitutionally valid, and therefore, the trial court’s
order granting Defendant’s motion to suppress is reversed, the order dismissing the
indictment is reversed, and this case is remanded.

    Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., J., joined. J UDGE J.C. M CL IN was originally on the panel to which this case was
assigned. Judge McLin died September 3, 2011, and we acknowledge his faithful service to
this Court.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Lisa Zavogiannis, District Attorney General; and Darrell Julian, Assistant
District Attorney General, for the appellant, State of Tennessee.

David L. Clarke, Manchester, Tennessee, for the appellee, Bernardo Acuna Rodriguez.

                                          OPINION

Suppression hearing

       Officer Richard Hall, of the McMinnville Police Department, testified that he was on
patrol duty at 7:00 a.m., on January 11, 2010. While parked in a parking lot at the corner of
Garfield Street and West End Avenue in McMinnville, he was casually conversing with
another officer, Brandon Vann, who was parked next to him, when he observed a maroon,
four-door vehicle pull out of the parking lot for the Westfield Manor apartment complex onto
West End and stop in the roadway, blocking both lanes of traffic. The vehicle sat in the
roadway for “about a minute” and then reversed back into the parking lot. Officer Hall
testified that he did not recognize the vehicle. He testified, “[a]t that time, I thought that
maybe something may be wrong, medical issue or possibly the driver may be possibly DUI.”
Officer Hall drove toward the vehicle and observed the vehicle turn left back into the
apartment parking lot and drive behind the apartment complex. He noticed that the license
plate number matched the license plate number of a vehicle registered to an owner whose
license was revoked for DUI. The information about the owner’s driver’s license being
revoked, as well as the license plate number, was previously given to Officer Hall by another
police officer, who was never identified at the hearing. It was not until Officer Hall followed
the vehicle into the parking lot that he recognized the license plate number. Officer Hall
observed the vehicle pull into a parking spot, and Defendant exited the vehicle and began to
walk toward the back of his vehicle. Officer Hall had activated his blue lights as he
approached Defendant, after Defendant had exited his vehicle. Officer Hall “asked
[Defendant] if everything was okay.” Defendant answered, “yes,” and Officer Hall asked
him his name. Defendant told Officer Hall that his name was Bernardo, and Officer Hall
asked if his last name was Rodriguez, to which he replied, “yes.” Officer Hall testified that
he knew Defendant’s last name because it was the name given to him by the other officer.
Officer Hall also testified that the vehicle matched the vehicle description given to him by
the other officer.

      Officer Hall contacted dispatch and confirmed that Defendant’s driver’s license was
revoked for DUI. Officer Hall then arrested Defendant.

        On cross-examination, Officer Hall testified that, at the time he observed the vehicle
stopped in the roadway, he did not recognize it as the vehicle described to him by the other
officer. He also testified that the length of time the vehicle was stopped in the roadway was
“between a few seconds and a minute. I don’t recall the exact time.” No other vehicles
traveled from either direction while Defendant was stopped in the roadway. When
Defendant reversed back into the parking lot, there were no other vehicles behind him, and
he did not otherwise impede traffic. Officer Hall did not recognize the license plate until
Defendant “pulled in and parked.” Officer Hall did not know Defendant’s identity when he
initially approached Defendant.

      On redirect examination, Officer Hall testified that his sole purpose for driving
towards the vehicle after observing it stop in the roadway was “[t]o check the driver’s



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welfare.” On recross examination, Officer Hall further testified that he did not follow
Defendant’s vehicle because of any traffic violation he observed.

Trial Court’s Findings of Fact

       The trial court took the motion to suppress under advisement after the testimony and
arguments of counsel were concluded. However, during the arguments of counsel, the trial
court made some observations that could be considered factual findings. For instance, the
following transpired between the prosecutor and the trial court:

        [PROSECUTOR]: . . . I think what happens is from the time [Officer
                      Hall] first sees [Defendant’s] vehicle there is
                      developing information that this car now matches a
                      car that the police have an interest in because someone
                      has been driving on a revoked driver’s license. There
                      is only one man in the car. [Officer Hall] follows
                      [Defendant] into the driveway, back into his
                      residence, and the man, you know, [Officer Hall] then
                      sees the tag and the tag matches the tag number and
                      the vehicle of the one that’s been driving on a revoked
                      driver’s license.

        THE COURT:           And I would respectfully disagree. I don’t think
                             [Officer Hall] has got good enough information that
                             the guy has done something illegal.

        [PROSECUTOR]: But what information would [Officer Hall] then need
                      if he has reliable information that this particular
                      defendant is –

        THE COURT:           That goes back to my original theory. We had a case
                             before where – I don’t know if it was Officer Cantrell
                             or whoever it was – had come out of General Sessions
                             Court, seen a person’s license revoked, and knew that
                             it was revoked for a year and I think knew that the
                             person was an illegal and could not get a driver’s
                             license. He sees him out a week or two later, knowing
                             that there is no way he could get a license back, stops
                             him, and I think that’s fine but it’s getting back to my
                             original statement, officers just saying, hey, you might

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                               want to watch for Josh, he might not have a driver’s
                               license, you might need to watch for Bill, heard he
                               might be something and then that is sufficient
                               evidence? I’m not sure that I’m okay with that, to
                               stop somebody, and I think he stopped him not
                               knowing – I mean, I guess he could have – his tag was
                               valid. Once he got out he could have said, do you
                               mind if I ask you for your driver’s license without
                               seizing him. But I’m just not sure I’m okay with
                               another police officer told me that [name omitted]
                               doesn’t have a driver’s license. I can stop [name
                               omitted] whenever I want to.

        We interpret the trial court’s remarks set forth above to include an implicit finding of
fact that the State failed to prove that Officer Hall had reliable information that the owner of
the subject vehicle had a revoked driver’s license, even though Officer Hall believed that
information. It is fundamental that an officer’s total failure to have reliable information that
a crime has been or is about to be committed prevents a stop and seizure (based solely upon
that unreliable information) from being a stop “based on reasonable suspicion, supported by
specific and articulable facts.” See State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

       Approximately one month after the suppression hearing, the trial court made its ruling
and findings of fact in open court. We deem it necessary to set forth the entirety of this
proceeding from the transcript in the record:

        THE COURT:             Okay. We have Bernardo Acuna Rodriguez. I want
                               to thank both of you gentlemen for filing your briefs
                               in that case. Both of you did a good job. You were
                               very accurate with your arguments. I don’t think there
                               is a need for any additional proof. We took the proof
                               and I remember it and you both recited it accurately in
                               your briefs. I did read both of them. It is a very
                               interesting case, and quite frankly, I think that
                               regardless of how I rule, it probably needs to be taken
                               up to the Court of Appeals and let them clarify some
                               issues. I am going to rule that the officer did not
                               initiate a traffic stop and that he did in fact seize the
                               defendant when he initiated his blue lights. The
                               officer did have some information that the owner of
                               the vehicle in question did not have a valid driver’s

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                             license. That information came from another officer
                             that I don’t believe was named on a prior occasion.
                             He had that information. I also find that the officer
                             did not know that the person who was the owner of
                             the car was the actual driver of that vehicle until he
                             was stopped, approached, and then asked his name.
                             Now, those are the findings. So, therefore I find that
                             the stop was not valid based on the fact that there was
                             no reasonable suspicion of even that person had
                             committed an offense because he didn’t know who the
                             person was until he was stopped, and he was stopped
                             when the blue lights were initiated. He was not
                             stopped because of a traffic offense or a criminal
                             offense. I give you thirty (30) days to appeal, and like
                             I said, I think this is one that needs to be appealed.

        [PROSECUTOR]: Your Honor, can I ask, are you thinking that the fact
                      that he wasn’t exercising his community caretaking
                      function is . . . is that separate?

        THE COURT:           I don’t think that he needed to initiate the blue lights
                             at that point to be involved in the community
                             caretaking function because the driver had pulled his
                             car into a parking space and had exited the vehicle.
                             So, I don’t think he needed to stop him as I found with
                             the blue lights at that point. I am not saying he wasn’t
                             going to check on the person, but I think he seized
                             when he didn’t need to when he hit the lights. I don’t
                             know if that is clear enough. I guess you need me to
                             find was he engaged in community caretaking activity,
                             no. I think he was engaged in activity to stop the
                             person who was getting out of the vehicle to see if it
                             was the person he thought didn’t have a driver’s
                             license, if that helps. This will be one that will not
                             offend me if I am wrong. Thank you gentlemen.

      Subsequently, the trial court entered a written order granting the motion to suppress.
The order set forth the following:




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                      ORDER GRANTING MOTION TO SUPPRESS

               This cause came on to be heard on the 25th day of August, 2010
        before the Honorable Larry B. Stanley, Jr. Based upon testimony of
        witnesses, statements of counsel and the briefs filed by counsel, the Court
        finds that:

                1.     The defendant was seized when the officer initiated his blue
                       lights, which occurred after the defendant had parked and
                       exited his vehicle.

                2.     The officer who made the stop had received information from
                       another officer that the owner of the vehicle in question did
                       not have a valid driver’s license.

                3.     The officer that made the stop did not know that the owner of
                       the vehicle was the actual driver of the vehicle until after the
                       officer initiated his blue lights and approached the defendant
                       who had already exited the vehicle.

                4.     The officer was not exercising his community caretaking
                       function when he initiated his blue lights and stopped the
                       defendant.

                5.     Therefore, the stop was not valid because there was no
                       reasonable suspicion that the defendant had committed an
                       offense because the officer did not know who the driver of
                       the vehicle was until after he initiated his blue lights and
                       stopped the defendant.

        We conclude that the trial court implicitly found, in its written order, that the
information from the unnamed police officer, which was relied upon by Officer Hall, was
reliable. Comments by the trial court which indicated a factual finding that the State had
failed to prove the reliability of the information were made before the trial court took the case
under advisement. Further, the trial court did not include those comments in either the ruling
from the bench or the written order granting the motion to suppress.

       We conclude that the trial court based its ruling upon the fact that even though Officer
Hall had reliable information that the owner of the vehicle had a revoked driver’s license,
Officer Hall did not know who had been driving the vehicle until he had already seized

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Defendant, and therefore lacked reasonable suspicion that Defendant had committed an
offense.

Analysis

       The findings of fact made by the trial court at the hearing on a motion to suppress are
binding upon this Court unless the evidence contained in the record preponderates against
them. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact,
is able to assess the credibility 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 prevailing party is entitled to the strongest legitimate view of the
evidence and all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d
515, 521 (Tenn. 2001). However, 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 law 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 (Tenn. 2000).

        Under both the federal and state constitutions, a warrantless search and seizure is
presumed unreasonable, and the evidence discovered as a result thereof is subject to
suppression unless the State demonstrates that the search and seizure was conducted pursuant
to one of the narrowly defined exceptions to the warrant requirement. State v. Binette, 33
S.W.3d 215 (Tenn. 2000). “A police officer may make an investigatory stop of a motor
vehicle when the officer has reasonable suspicion, supported by specific and articulable facts,
that a criminal offense has been or is about to be committed.” Watkins, 827 S.W.2d at 294
(citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868 (1968)). “In determining whether a
police officer’s reasonable suspicion is supported by specific and articulable facts, a court
must consider the totality of the circumstances.” Watkins, 827 S.W.2d at 294 (citing U.S. v.
Cortez, 449 U.S. 411, 417 (1981)).

       First, we conclude, and the State concedes, that Officer Hall’s activation of the blue
lights constituted a seizure of Defendant. The trial court found, and the totality of the
circumstances shows, that the officer’s activation of his blue lights was a show of authority.
Specifically, when Officer Hall stopped Defendant, any concern Officer Hall had for
Defendant’s well being was abated when Officer Hall observed Defendant park his vehicle
and exit and walk away from the vehicle without any indication that he was in any danger or
distress.

        The State asserts that the trial court erred by granting Defendant’s motion to suppress
Defendant’s identity as the driver of the vehicle because the officer did not seize Defendant
until after he had reasonable suspicion that Defendant was driving on a revoked license. We

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must determine whether Officer Hall had “a reasonable suspicion, supported by specific and
articulable facts, that a criminal offense ha[d] been or [was] about to be committed.”
Watkins, 827 S.W.2d at 294 (citing Terry v. Ohio, 392 U.S. at 21).

        When evaluating whether a police officer’s reasonable suspicion is supported by
specific and articulable facts, a court “must consider the totality of the circumstances.” State
v. Hord, 106 S.W.3d 68, 71 (Tenn. Crim. App. 2002). This inquiry looks to such factors as
the public interest served by the seizure, the nature and scope of the intrusion, and the
objective facts on which the law enforcement officer relied in light of his experience. See
State v. Pulley, 863 S.W.2d 29, 30-31 (Tenn. 1993). The objective facts on which an officer
relies can include, but are not limited to, his or her own observations, information obtained
from other officers or agencies, offenders’ patterns of operation, and information from
informants. See State v. Lawson, 929 S.W.2d 406, 408 (Tenn. Crim. App. 1996).
Reasonable suspicion must be supported by something more than the officer’s “inchoate and
unparticularized suspicion or ‘hunch.’” State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008)
(quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). However, “‘reasonable suspicion can be
established with information that is different in quantity or content than that required to
establish probable cause’” and “can arise from information that is less reliable than that
required to show probable cause.” Id. at 903 (quoting State v. Pulley, 863 S.W.2d 29, 32
(Tenn. 1993)).

        The State relies primarily upon Watkins. In Watkins, the Tennessee Supreme Court
upheld the constitutionality of an investigatory stop when the officers initiating the stop had
personal knowledge that there was an outstanding capias for the defendant’s arrest. Other
officers had informed the arresting officers of the description of a vehicle driven by the
defendant. The vehicle was a black Cadillac with the words “the Duke” written on it. Id. at
294. When officers saw a vehicle matching that description, they “decided to stop the
vehicle and investigate the identity of the driver.” Id. at 295. After stopping the vehicle,
officers discovered that the defendant did not have a driver’s license. They called dispatch
to verify the outstanding capias and arrested the defendant. Id.

        The State asserts that Officer Hall’s reliance on the information from another officer
is “no different” than the facts in Watkins. The State acknowledges that Officer Hall did not
initially have reasonable suspicion to make a stop of Defendant’s vehicle; however, the State
asserts that reasonable suspicion arose when Officer Hall recognized the license plate number
on the vehicle driven by Defendant.

       Defendant distinguishes Watkins, pointing to the trial court’s ruling in which the trial
court found a lack of reliability in the information relied upon by Officer Hall. As stated



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above, we conclude that the trial court ultimately did not make the finding of fact relied upon
by defendant. We conclude that Watkins controls.

       Although Defendant stopped in the roadway, blocking both lanes of traffic, and then
reversed back into the parking lot, Officer Hall testified that there was no oncoming traffic,
Defendant’s driving did not impede traffic, and Defendant did not commit any traffic
violations. At that point, Officer Hall only intended to check on Defendant’s welfare.
However, as Officer Hall got closer to the vehicle driven by Defendant, the officer noted that
the description of the vehicle, and the vehicle’s license plate number, matched a vehicle
owned by a man whose driver’s license was revoked. At that point, Officer Hall had
reasonable suspicion, based upon specific and articulable facts, that Defendant had
committed, in Officer Hall’s presence, the offense of driving on a revoked license. During
the investigatory stop, Officer Hall confirmed Defendant’s identity and the status of his
driver’s license, which became the basis of probable cause for Defendant’s arrest.

                                      CONCLUSION

       Based upon our review of the record, it is our opinion that the officer had reasonable
suspicion to justify his stop of Defendant. Accordingly, we reverse the order of the trial
court granting Defendant’s motion to suppress, reverse the order dismissing the indictment,
and remand this case to the trial court for further proceedings.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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