         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     July 20, 2004 Session

              STATE OF TENNESSEE v. BRANDON ABERNATHY

                 Direct Appeal from the Williamson County Criminal Court
                        No. II-303-084-A   Timothy L. Easter, Judge



                  No. M2003-03058-CCA-R3-CO - Filed September 1, 2004


The Defendant, Brandon Abernathy, pled guilty to two counts of armed robbery. Pursuant to
Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the
issue of whether the trial court erred when it denied his motion to suppress. Finding no error, we
affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
NORMA MCGEE OGLE, JJ., joined.

Mark C. Scruggs, Nashville, Tennessee, for the appellant, Brandon Abernathy.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION
                                             I. Facts

       This case arises from the armed robbery of the victims at a Best Western motel in Williamson
County on February 12, 2003. The Defendant was arrested in connection with this robbery, and he
gave statements to police regarding the crimes. Prior to entering a guilty plea, the Defendant filed
a motion to suppress his statements contending that they were given to police after an illegal search
and seizure. The trial court denied the Defendant’s motion, and the Defendant pled guilty to
aggravated robbery, reserving a certified question of law regarding whether the motion to suppress
was improperly denied. At the hearing on the Defendant’s motion to suppress, the following
evidence was presented.

       John Taylor, an officer with the Franklin Police Department, testified that he was at a
Starbucks coffee shop located behind a Best Western motel when he received a call from dispatch
that an armed robbery had just taken place at the Best Western. The officer said that he arrived at
the parking lot that joins the Best Western ten to fifteen seconds after he received the call. Officer
Taylor stated that, as he was pulling into the parking lot, dispatch provided him a description of a
suspect in the robbery and described a young black male wearing blue jeans and a dark hooded
sweatshirt. The officer said that he observed a white vehicle leaving the parking lot at a high rate
of speed headed east on Highway 96 towards Interstate 65. The officer said that he followed the
vehicle, and, while waiting at a stop light behind the white vehicle, he identified the passenger as a
young black male wearing a dark hooded sweatshirt. Officer Taylor said that he then initiated a
traffic stop by activating his lights and waited a few moments for back-up. The officer said that,
when back-up arrived, he and another officer approached the vehicle. Officer Taylor testified that
as he approached the vehicle he noticed that the passenger was also wearing blue jeans.

        Officer Taylor testified that, when he reached the driver’s window, he asked the driver and
passenger where they had been. Officer Taylor testified that the driver stated that they had just left
a nearby McDonald’s, which the officer said was inconsistent with his own observations. Officer
Taylor asked the occupants to exit the vehicle and patted the suspects down with another officer’s
help. The officer said that the pat down of the Defendant revealed a large amount of cash and a box
of bullets. Officer Taylor said that the officers handcuffed the two suspects and placed them behind
their vehicle. The officers proceeded to search the vehicle and discovered a hat and a handgun
between the driver’s seat and the middle console. Officer Taylor said that he found a purse
belonging to one of the victims behind the driver’s seat.

        On cross-examination, the officer conceded that the dispatch report showed that the call
about the armed robbery went out at 9:44 p.m. and that the information regarding the description of
the robbery suspect went out at 9:49 p.m., after the officers had stopped the vehicle in which the
Defendant was riding. Officer Taylor explained the inconsistency by stating that the times recorded
in the dispatch report do not accurately reflect the actual time the information is dispatched on the
radio. The officer also conceded that dispatch had not provided him with a description of the vehicle
used in connection with the robbery.

        The trial court found Officer Taylor’s testimony to be credible, and the explanation of the
time discrepancy plausible and uncontroverted and, accordingly, denied the Defendant’s motion to
suppress. The Defendant pled guilty to both counts of aggravated robbery, reserving a certified
question of law, and the trial court sentenced him to eight years on each count, ordering that the
sentences run concurrently.

          The trial court entered an agreed order that articulated the Defendant’s certified question of
law as:

                  Whether the Defendant was subject of an unlawful stop, arrest and/or seizure
          by Franklin Police and subsequent search (in violation of his rights pursuant to the
          Fourth and Fourteenth Amendments to the United States Constitutions and Article
          I, Section 7 of the Tennessee Constitution) on or about February 12, 2004, when his


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        vehicle was stopped and searched and he was searched as well and various evidence
        was discovered and he was later questioned and gave incriminating statements.

                                           II. Analysis
                                   A. Certified Question of Law

       Because this appeal comes before us as a certified question of law, pursuant to Rule 37(b)
of the Tennessee Rules of Criminal Procedure, we must first determine whether the question
presented is dispositive. Tennessee Rule of Criminal Procedure 37(b) provides, in pertinent part,
that:

        An appeal lies from any order or judgment in a criminal proceeding where the law
        provides for such appeal, and from any judgment of conviction . . . upon a plea of
        guilty [if] . . . [the] defendant entered into a plea agreement under Rule 11(e) 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:

        (A) The judgment of conviction, or other document to which such judgment refers
        that is filed before the notice of appeal, must contain a statement of the certified
        question of law reserved by the defendant for appellate review;
        (B) The question of law must be stated in the judgment or document so as to identify
        clearly the scope and limits of the legal issue reserved;
        (C) The judgment or document must reflect that the certified question was expressly
        reserved with the consent of the state and the trial judge; and
        (D) The judgment or document must reflect that the defendant, the state, and the trial
        judge are of the opinion that the certified question is dispositive of the case . . . .

Tenn. R. Crim. P. 37(b)(2); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The record evinces
that all of the requirements of Rule 37 are clearly met, and the only issue about which discussion
is necessary is whether the certified question of law is dispositive of the case. We have stated that
a dispositive issue is one where the appellate court “must either affirm the judgment or reverse and
dismiss. A question is never dispositive when [the appellate court] might reverse and remand for
trial . . . .” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).

         The certified question of law in this case is whether the trial court erred by refusing to grant
the Defendant’s motion to suppress evidence by finding that the officers had probable cause to
effectuate a warrantless search of the Defendant and the vehicle in which he was traveling, leading
to his arrest and subsequent confession. Because the State’s entire case is based upon the warrantless
search, if we determine that the search was unconstitutional, then the resulting search of the
Defendant’s vehicle would violate the Fourth Amendment to the United States Constitution and
Article 1, section 7, of the Tennessee Constitution, and the Defendant’s statements to police would
be fruit of the poisonous tree. Therefore, we conclude that the certified issue is dispositive.


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                                      B. Motion to Suppress

         The Defendant contends that the trial court erred when it denied his motion to suppress
because the officers did not have specific, articulable facts linking the car to the robbery. The
standard of review for a trial court’s findings of fact and conclusions of law in a suppression hearing
was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). This standard mandates that “a trial
court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. at 23; see State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). The prevailing party
in the trial court is “entitled to the strongest legitimate view of the evidence adduced at the
suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that
evidence.” Odom, 928 S.W.2d at 23. Furthermore, “[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.” Id. However, this Court reviews the trial court’s application
of the law to the facts de novo, without any deference to the determinations of the trial court. State
v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The defendant bears the burden of demonstrating that
the evidence preponderates against the trial court’s findings. Odom, 928 S.W.2d at 22-23; see State
v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

                                 1. Reasonable Suspicion to Stop

        The Fourth Amendment to the United States Constitution, made applicable to the States by
the Fourteenth Amendment, and Article I section 7 of the Tennessee Constitution, protect citizens
against unreasonable searches and seizures.

       Consequently, under both the federal and state constitutions, a warrantless search or
       seizure is presumed unreasonable, and evidence discovered as a result thereof is
       subject to suppression unless the State demonstrates by a preponderance of the
       evidence that the search or seizure was conducted pursuant to one of the narrowly
       defined exceptions to the warrant requirement.

State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998). The federal and state constitutions’
prohibitions against unreasonable searches and seizures also apply to vehicles. Simpson, 968
S.W.2d. at 780. Accordingly, we must first determine whether the detention of the Defendant by the
police officers amounted to a seizure. If so, we must then determine whether the officers possessed
an articulable reasonable suspicion for an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968),
and its progeny. “Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry,
392 U.S. at 19 n.16; State v. Hord, 106 S.W.3d 68, 70 (Tenn. Crim. App. 2003). The Supreme Court
stated that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view
of all of the circumstances surrounding the incident, a reasonable person would have believed that
he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980); Hord, 106
S.W.3d at 71. Further, our Supreme Court has stated that “When an officer turns on his blue lights,



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he or she has clearly initiated a stop . . . [and the vehicle’s driver is] ‘seized’ within the meaning of
the Terry decision.” State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).

        In the case under submission, it is clear that the Defendant was “seized” within the meaning
of the Constitution. Officer Taylor observed the Defendant and another man in a vehicle leaving the
parking lot at a high rate of speed from where an armed robbery had just occurred. After following
the vehicle the officer stopped behind it at a stoplight and noticed that the passenger was wearing
clothing that matched the description of the robbery suspect provided to him by the police dispatch.
Based upon this information the officer initiated a stop. After back-up arrived, the officers
handcuffed both of the occupants of the vehicle and placed them behind their vehicle. We conclude
that the stop of the vehicle in which the Defendant was riding was a seizure under both the United
States and Tennessee Constitution.

         Not having a warrant to seize the Defendant, it is incumbent upon the state to demonstrate
that the seizure was made under one of the exceptions to the warrant requirement. Pulley, 863
S.W.2d at 30. One exception to the warrant requirement exists when a police officer performs an
investigatory stop. Terry, 392 U.S. at 20-21; State v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997).
An investigatory stop of an automobile without a warrant is constitutionally permissible if the officer
has a reasonable suspicion, supported by specific and articulable facts, that a criminal offense has
been or is about to be committed. Ornelas v. United States, 517 U.S. 690, 693 (1996); Simpson, 968
S.W.2d at 780. In evaluating whether a police officer has reasonable suspicion supported by specific
and articulable facts, a court must consider the totality of the circumstances. United States v. Cortez,
449 U.S. 411, 417 (1981); State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). “This includes, but
is not limited to, objective observations, information obtained from other police officers or agencies,
information obtained from citizens, and the pattern of operation of certain offenders.” Watkins, 827
S.W.2d at 294; see Cortez, 449 U.S. at 418. “A court must also consider the rational inferences and
deductions that a trained police officer may draw from the facts and circumstances known to him.”
Watkins, 827 S.W.2d at 294; see Terry, 392 U.S. at 21. “Finally, the content, quality, and quantity
of information possessed by police must be assessed in determining whether it is sufficiently reliable
to support a finding of reasonable suspicion.” State v. Keith, 978 S.W2d 861, 867 (Tenn. 1998).

        The officer, or course, must be able to articulate something more than an inchoate
        and unparticularized suspicion or hunch. The Fourth Amendment requires some
        minimal level of objective justification for making the stop. That level of suspicion
        is considerably less than proof of wrongdoing by a preponderance of the evidence.

Keith, 978 S.W.2d at 867 (quoting United States v. Sokolow, 490 U.S. 1, 7-8 (1989)).

        In the case under submission, the trial court stated:

        I find based upon [Officer Taylor’s] testimony regarding the manner in which he
        observed this vehicle leave the parking lot, the information he had from . . . dispatch
        which was received from the victim was information regarding the description of the


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       offenders which he had opportunity to confirm while following the vehicle, and
       particularly while sitting behind the vehicle for some twenty-five seconds . . . .
       Those facts which he was able to articulate are specific facts which taken together
       with all other rational inferences would warrant the stop of the vehicle . . . .

We conclude that the evidence does not preponderate against the findings of the trial court. Officer
Taylor observed a vehicle leave a crime scene at a high rate of speed, and, while sitting behind the
vehicle at a stop light, he noticed that the passenger of the vehicle matched the suspect’s description.
These specific and articulable facts led the officer to develop a reasonable suspicion that the
occupants of the vehicle were recently involved in an armed robbery. Accordingly, the trial court
did not err when it found that the officers were justified in making an investigatory stop of the
vehicle without a warrant.

                                         2. Probable Cause

        Because we have determined that the officers had reasonable suspicion to stop the vehicle
in which the Defendant was a passenger, we must next determine whether the officers had probable
cause to place the Defendant in custody and to search the vehicle.

                             a. Probable Cause for Custodial Arrest

        The Defendant contends that the police officers did not have probable cause to place him into
custody. We disagree. Upon a showing of probable cause to believe that a crime has been
committed, and that the suspect of the investigation committed that crime, a custodial arrest may
properly be made. State v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999). Our Supreme Court has
defined “probable cause” as “a reasonable ground for suspicion, supported by circumstances
indicative of an illegal act.” State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998).

        The officer testified that, after conducting a stop, he placed the Defendant and other occupant
of the vehicle in handcuffs and placed them behind the vehicle. At that point, the officers had
probable cause to place the Defendant into custody. An officer saw the vehicle in which the
Defendant was riding leaving the scene of a crime at a high rate of speed. The Defendant was
wearing clothes that matched the description of the suspect. Under these circumstances, the police
officers had probable cause to believe that the Defendant had committed a crime, and, therefore, the
officers had probable cause to place the Defendant under custodial arrest.

                  b. Probable Cause to Search the Defendant and the Vehicle

       The Defendant contends that the search of his person and the automobile was an
unconstitutional search that violated the Fourth Amendment and, as a result, the trial court should
have granted his motion to suppress the evidence obtained in the search. Since warrantless searches
and seizures are presumed to be unreasonable, the prosecution has the burden of establishing, by a
preponderance of the evidence, that the search and resulting seizure were justified pursuant to one


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of the recognized exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443,
454-55 (1971); Watkins, 827 S.W.2d at 295. One such exception is a police search that follows a
lawful arrest. Chimel v. California, 395 U.S. 752, 762-63; Watkins, 827 S.W.2d at 295. Upon a
showing of probable cause to believe that a crime has been committed, and that the suspect of the
investigation committed that crime, a custodial arrest may properly be made. State v. Crutcher, 989
S.W.2d 295, 300 (Tenn. 1999). When police officers make a lawful custodial arrest, they are
permitted, as incident to the arrest, to search the person arrested and the immediately surrounding
area. Chimel, 395 U.S. at 763. The rationale for these searches is the need to disarm the arrestee
in order to safely take him into custody, and the need to preserve evidence for later use at trial. State
v. Robinson, 414 U.S. 218, 234 (1973).

       In cases where the arrestee is an occupant of a vehicle, police officers may conduct searches,
contemporaneous to the arrest, of the passenger compartments inside the vehicle. New York v.
Belton, 453 U.S. 454, 457 (1981). The Tennessee Supreme Court has upheld the validity of those
searches even where the arrestee is neutralized in the back seat of a police car when the search is
conducted. Watkins, 827 S.W.2d at 295-96. In Tennessee, an arrest is more specifically defined as:

        “[T]he taking, seizing, or detaining of the person of another, either by touching or
        putting hands on him, or by any act which indicates an intention to take him into
        custody and subjects the person arrested to the actual control and will of the person
        making the arrest.”

Crutcher, 989 S.W.2d at 301 (quoting West v. State, 221 Tenn. 178, 184, 425 S.W.2d 602, 605
(1968)). An arrest may be affected without formal words or a station house booking. Id. However,
there must be actual restraint on the arrestee’s freedom of movement under legal authority of the
arresting officer. Id. at 301-02.

        Relying on this definition, it is apparent that the Defendant was arrested prior to the search
of the Defendant’s vehicle. The Defendant was placed in handcuffs and placed behind the vehicle
in which he was riding. Prior to being handcuffed, he was frisked and the officers found cash and
bullets on his person. Thereafter, they found in the car a toboggan, a handgun, and a purse belonging
to one of the victims. At this point, the Defendant was under custodial arrest, and the officers
conducted a lawful search of the Defendant’s person and the vehicle incident to his lawful arrest.
Accordingly, we hold that the trial court did not err in denying the Defendant’s motion to suppress.

                                           III. Conclusion

      In accordance with the foregoing authorities and reasoning, we AFFIRM the trial court’s
judgments.


                                                            _______________________________
                                                            ROBERT W. WEDEMEYER, JUDGE


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