        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   May 14, 2013 Session

          STATE OF TENNESSEE v. CHARLES EWING KENNEDY

                    Appeal from the Circuit Court for Maury County
                        No. 21129     Jim T. Hamilton, Judge


                 No. M2012-00755-CCA-R10-CD- Filed June 28, 2013


Appellee, Charles Ewing Kennedy, was indicted by the Maury County Grand Jury for driving
under the influence, second offense; speeding; and violation of the implied consent law.
Appellee moved to suppress the evidence against him regarding the driving under the
influence count. The trial court granted his motion to suppress. This court granted the
State’s application for permission to appeal. On appeal, the State argues that the trial court
incorrectly applied a sufficiency of the evidence standard when granting appellee’s motion
to suppress rather than making a probable cause determination. The State urges this court
to reverse the trial court’s ruling and to conclude that the police had probable cause to arrest
appellee for driving under the influence. Following our review, we reverse the ruling of the
trial court and remand for further proceedings consistent with this opinion.

     Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court
                            Reversed; Case Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
C AMILLE R. M CM ULLEN, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon and Kyle Hixson,
Assistant Attorneys General; T. Michel Bottoms, District Attorney General; and M. Caleb
Bayless, Assistant District Attorney General, for the appellant, State of Tennessee.

William C. Barnes, Jr., Columbia, Tennessee, for the appellee, Charles Ewing Kennedy.
                                                 OPINION

                                                   I. Facts

       The scant record in this case reflects that Spring Hill Police Officer Ezra Martin
stopped appellee for speeding on April 9, 2011. Appellee was indicted on October 12, 2011,
for driving under the influence (“DUI”), second offense; speeding; and violation of the
implied consent law. Appellee moved to suppress the evidence against him relating to the
DUI count of the indictment. The trial court held a hearing on the motion on February 10,
2012.

       At the suppression hearing, Spring Hill Police Lieutenant Charles Crosslin testified
that he heard over the radio that Officer Ezra Martin had stopped appellee for speeding.
Lieutenant Crosslin proceeded to the scene to assist Officer Martin. He testified at the
motion to suppress hearing that Officer Martin had smelled alcohol on appellee. Lieutenant
Crosslin said that appellee reported that he had consumed three to five beers during the day
and had been driving from one bar to another bar. Lieutenant Crosslin had appellee perform
several sobriety tests. According to him, appellee failed the first two tests, the nine-step-
walk-and-turn and the finger-to-nose tests, and passed the second two, the one-legged-stand
and general balance tests. Lieutenant Crosslin testified that appellee did not count his steps
out loud and “bobbled” when turning during the nine-step test and that he did not touch the
tip of his nose during the finger-to-nose test. Lieutenant Crosslin testified that he had
appellee perform the horizontal gaze nystagmus test1 because Lieutenant Crosslin “was trying
to keep a straight face on account of [appellee’s] passenger.”

        The only other evidence presented at the suppression hearing was the video of the
field sobriety tests. The trial court viewed the video of the field sobriety tests, as has this
court. We note that Lieutenant Crosslin told appellee after the second test that he had done
“pretty good.” Whether appellee actually touched his nose cannot be discerned from the
video. We further note that the police officers allowed appellee’s passenger to perform at
least one of the field sobriety tests next to appellee, and the passenger clearly failed the tests
and would best be characterized as a distraction.

        At the conclusion of the hearing, the trial court took the matter under advisement and
filed the following written order granting appellee’s motion to suppress on February 29,
2012:


        1
           The horizontal gaze nystagmus test is a scientific test; therefore, evidence regarding the test “must
satisfy the requirements of Tenn. R. Evid. 702 and 703 as announced in McDaniel v. CSX Transportation,
Inc., 955 S.W.2d 257 (Tenn. 1997).” State v. Murphy, 953 S.W.2d 200, 201 (Tenn. 1997).

                                                      -2-
               This Motion to Suppress was heard on the 13th 2 day of February[,]
        2012. The [appellee] was traveling on North Main Street in Mt. Pleasant,
        T[ennessee]. The [appellee] was driving[,] by [Officer Martin’s] estimate[,]
        about [fifty-five miles per hour] in a [thirty miles per hour] zone. The
        [appellee], when asked, admitted drinking “up to [five] beers” at the Club
        Crash. The [appellee] was stopped on Third Avenue, Mt. Pleasant,
        T[ennessee].

                [Appellee] was given some field sobriety tasks. The first task was the
        nine-step task[,] and [appellee] failed to count out lo[u]d[. A]lso the finger-to-
        nose task was given[,] and the policeman stated [appellee] failed to touch the
        tip of his nose, but he was given a passing grade on this task by the police
        officer.3 The one-legged stand and balance task were given[,] and the
        policeman said he did very well. This [appellee] is charged with DUI 2nd
        offense, Speeding[,] and Violation of the Implied Consent Law. The
        policeman has been very candid in his opinion as to [appellee]’s performance
        on the various sobriety tasks. The stop was good[;] [appellee] was speeding.
        This Court feels that because of the severe consequences of DUI second, the
        State’s case needs to be strong. That is not the case here[,] and the Court
        grants the Motion to Suppress filed by [appellee]. This finding will have no
        bearing on the other charges of Speeding or Violation of the Implied Consent
        Laws.

               It is therefore[] ordered, adjudged[,] and decreed by the Court[] that the
        Motion to Suppress filed by the Defendant is granted as [to] the results of the
        field sobriety tasks. The charges of Speeding and Violation of the Implied
        Consent are not affected by the granting of this Motion to Suppress.

       Following the trial court’s ruling, the State applied to this court for permission to
appeal pursuant to Tennessee Rule of Appellate Procedure 10. This court granted the
application because we “conclude[d] that review of the material issue presented in the State’s
application is necessary at this time to prevent possible irreparable injury to the public’s
interest.” State v. Charles Ewing Kennedy, No. M2012-0075-CCA-R10-CD (Tenn. Crim.



       2
           The transcript of the hearing is dated February 10, 2012.
       3
          The trial court apparently found a discrepancy between Lieutenant Crosslin’s testimony and the
video evidence, which it resolved in favor of appellee.

                                                    -3-
App. May 25, 2012) (order granting permission for Rule 10 appeal) (citing State v. Meeks,
262 S.W.3d 710, 720 (Tenn. 2008)).

                                         II. Analysis

       On appeal, the State argues that the trial court improperly based its ruling on its
perception of the strength of the State’s case rather than the existence of probable cause. The
State has asked this court to conclude that there was probable cause to arrest appellee for
DUI. Appellee responds that the trial court made a probable cause determination when it
granted his motion to suppress. We agree with the State that the trial court applied the
incorrect legal standard but decline to make a probable cause determination.

        After an evidentiary hearing on the merits of a motion to suppress, we attribute to the
factual findings of the trial court the weight of a jury verdict. State v. Makoka, 885 S.W.2d
366, 371 (Tenn. Crim. App. 1994). We review de novo the trial court’s legal conclusions
denying a motion to suppress. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008). In
doing so, we give deference to the trial judge’s findings of fact unless the evidence
preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “‘[C]redibility 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.’” Northern, 262 S.W.3d at 747-48 (quoting Odom, 928 S.W.2d
at 23). However, “when a trial court’s findings of fact at a suppression hearing are based on
evidence that does not involve issues of credibility, a reviewing court must examine the
record de novo without a presumption of correctness.” State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). The prevailing party on the motion to suppress is afforded the “‘strongest
legitimate view of the evidence and all reasonable and legitimate inferences that may be
drawn from that evidence.’” Northern, 262 S.W.3d at 748 (quoting State v. Keith, 978
S.W.2d 861, 864 (Tenn. 1998)); see State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000);
Odom, 928 S.W.2d at 23.

        It is an elementary principle that a trial court reviewing the merits of a motion to
suppress based on an allegedly illegal, warrantless arrest must determine whether probable
cause supported the arrest. See State v. Echols, 382 S.W.3d 266, 276 (Tenn. 2012) (reciting
the law regarding probable cause for warrantless arrests). The trial court herein did not apply
the appropriate legal standard by basing its decision on the strength of the State’s case
relative to the consequences of a DUI, second offense, conviction rather than on the
existence of probable cause. Therefore, we reverse the trial court’s granting of appellee’s
motion to suppress.




                                              -4-
       The State has requested that this court review the evidence and conclude that probable
cause existed to arrest appellee. In Wade Willis, this court made such a ruling based upon
the video of the arrest and testimony of the arresting officer, which is the same type of
evidence we have in this case. See State v. Wade Willis, No. M2012-01577-CCA-R3-CD,
2013 WL 1645740, at *5 (Tenn. Crim. App. April 17, 2013). However, the officer’s
testimony in Wade Willis was uncontradicted. Id. In this case, there appear to be
discrepancies in the evidence, and resolution of such discrepancies is the province of the trial
court as the trier of fact. See Northern, 262 S.W.3d at 747-48. Therefore, we decline to
make a probable cause determination and remand the matter to the trial court for further
proceedings consistent with this opinion. Specifically, the trial court should determine
whether probable cause existed to support appellee’s warrantless arrest.

                                       CONCLUSION

       Based on our review of the record, the arguments of the parties, and the applicable
law, we reverse the trial court’s ruling on appellee’s motion to suppress and remand for
further proceedings consistent with this opinion.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




                                              -5-
