         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                         June 25, 2013

          STATE OF TENNESSEE v. CLIFFORD DELEON THOMAS

                    Appeal from the Criminal Court for Knox County
                     No. 96003 Stephen W. Sword, Presiding Judge


                 No. E2012-01956-CCA-R3-CD - Filed August 30, 2013


Defendant pled guilty to one count of possession of more than 0.5 grams of cocaine with
intent to sell, a Class B felony, and one count of driving with a suspended license, a Class
B misdemeanor, while reserving a certified question of law concerning the constitutionality
of a city ordinance requiring vehicles operating within the municipality to have a “tag light”
illuminating the vehicle’s license plate after dark. The defendant was sentenced to eight
years probation on the possession charge and to a concurrent six months probation for
driving with a suspended license. Upon review, we conclude that the certified question
reserved by the defendant is not dispositive of the constitutionality of the traffic stop at issue.
The defendant’s appeal is dismissed accordingly.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER, and R OGER A. P AGE, JJ., joined.

Mark Stephens, District Public Defender; Julia Auer Gautreau, Assistant Public Defender,
for the appellant, Clifford Deleon Thomas.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Randall Nichols, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.


                                           OPINION

                         FACTS AND PROCEDURAL HISTORY
       The defendant was indicted by a Knox County grand jury on one count of possession

with intent to sell more than 0.5 grams of cocaine base in violation of Tennessee Code

Annotated section 39-17-417, one count of possession with intent to deliver more than 0.5

grams of cocaine base in violation of Tennessee Code Annotated section 39-17-417, one

count of possession of marijuana in violation of Tennessee Code Annotated section 39-17-

418, one count of driving with a revoked licence in violation of Tennessee Code Annotated

section 55-50-504, one count of driving with a suspended license in violation of Tennessee

Code Annotated section 55-50-504, one count of driving with a cancelled license in violation

of Tennessee Code Annotated section 55-50-504, and one count of driving without a license

in violation of Tennessee Code Annotated section 55-50-351. These charges all resulted

from a traffic stop of the defendant’s vehicle that occurred on December 7, 2009.




       On September 2, 2011, the defendant filed a pretrial motion to suppress evidence on

the grounds that his traffic stop constituted an illegal seizure. In support of this motion, the

defendant alleged that the officer conducting the traffic stop had testified at a preliminary

hearing that his only reason for stopping the defendant’s vehicle was a “tag illumination

violation” of City of Knoxville Municipal Ordinance section 17-379(b)(4). The defendant

argued that: (1) a video recording of the stop traffic revealed that the defendant’s license tag

was in fact properly illuminated, and (2) section 17-379(b) was void because it conflicted

with a state law, Tennessee Code Annotated section 55-9-404, which required tag lights for



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passenger cars only in specific circumstances not applicable to his case and because it

conflicted with state policy (as reflected in the fact that the general assembly had not passed

any general law requiring passenger vehicles to operate with tag lights) against requiring

such tag lights.




       At a hearing held on November 17, 2011, the trial court reviewed video footage of the

traffic stop and heard arguments from the parties concerning whether the city ordinance

conflicted with state law. The State argued that municipalities generally have the power and

flexibility to supplement state law unless there is some specific prohibition against it and that

no such prohibition existed in this case.      In addition, the State argued that even if the

ordinance was unenforceable, the traffic stop ought to still be upheld on the grounds that the

police officer was acting in good faith and enforcing an ordinance that he reasonably

believed to be valid. The defendant argued that the relevant state enabling statute specifically

covered the operation of vehicles but not equipment on the vehicles themselves and that the

city did not have the power to require all vehicles to carry any equipment other than that

required by state law. The defendant argued that permitting various localities to implement

differing duties concerning vehicle equipment would unduly burden drivers and would serve

to unfairly penalize them as they traveled from city to city for violating local regulations of

which they were unaware. The defendant further argued that if the police stopped the

defendant based on an unconstitutional law, then the stop itself was unconstitutional, whether



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or not the officer reasonably believed that the ordinance that he was enforcing was valid.




       Following the hearing, the trial court took the matter under advisement. The court

later denied the defendant’s motion by written order dated December 9, 2011. The defendant

sought leave to file a motion for interlocutory appeal pursuant to Rule 9 of the Tennessee

Rules of Appellate Procedure. The trial court denied that motion on January 13, 2012. On

May 24, 2012, the defendant entered a conditional guilty plea—reserving a certified question

of law—to possession of more than 0.5 grams of cocaine base with intent to sell, a Class B

felony, and driving on a suspended license, a Class B misdemeanor. The remaining charges

were dismissed pursuant to the plea agreement. The defendant was sentenced as a Range I,

standard offender to eight years for possessing the cocaine and to six months for driving with

a suspended license. The trial court ordered the sentences to be served concurrently and

suspended the sentences, placing the defendant on probation.




       The defendant filed a timely notice of appeal raising only his certified question of law.

Our opinion follows.




                                         ANALYSIS




       The certified question preserved by the defendant reads in full:



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       The defendant, with the consent of the State and the trial court, entered a guilty
       plea but reserved pursuant to Tennessee Rules of Criminal Procedure 11(a)(3)
       and 37(b)(2) the following certified question of law; and the defendant, the
       State, and the trial court are all of the opinion that the following certified
       question of law is dispositive of the case in that a ruling on the issue will
       determine the lawfulness of the traffic stop leading up to the charge underlying
       the judgment. The scope and limits of the question of law are as follows:
       Whether City of Knoxville Ordinance, Section 17–379(b) is in conflict with
       Tennessee state law governing the regulation of motor vehicle equipment and
       is therefore void. The ordinance requires additional motor vehicle equipment
       not mandated by Tennessee Code Annotated, Title 55, Chapter 9, which
       governs motor vehicle equipment. The enabling language of Tennessee Code
       Annotated, Title 55, Chapter 10, Section 307 specifically authorizes
       municipalities to adopt by ordinance any appropriate provisions of Chapter 8
       for additional regulations of the operation of vehicles within the municipality.
       In light of the enabling language of Chapter 10 as it specifically relates to
       municipal expansion on the provisions of Chapter 8, is a municipality’s
       expansion on the provisions of Chapter 9 mandating additional equipment for
       motor vehicles in conflict with Chapter 9, and also the intent of Chapter 10,
       and therefore void under Article I, Section 8, and Article II, section 3 [of] the
       Tennessee [C]onstitution?

This question, as phrased, does not properly preserved an issue that is dispositive of the

defendant’s case. His appeal must be dismissed accordingly.




       As a general rule, a defendant who pleads guilty to a crime has no right to appeal. See

Tenn. R. Crim. P. 37(b)(2). However, our state does permit criminal defendants to bring an

appeal after entering a “conditional” guilty plea, provided certain requirements are met. See

Tenn. R. Crim. P. 37(b)(2)(A). One of the primary requirements is that the certified question

so preserved be “dispositive of the case.” See id. “An issue is dispositive when this court

must either affirm the judgment or reverse and dismiss,” but “[a]n issue is never dispositive



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when we might reverse and remand.” State v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim. App.

2000) (quoting State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984)). “We are not

bound by the trial court’s determination that an issue is dispositive;” instead, “we are

required to make an independent determination of the dispositive nature of the question

reserved.” Id.




       Attempting to properly preserve a certified question of law is always a practice fraught

with peril. The various requirements for properly preserving a certified question have been

“strictly construed” by our supreme court, and “the burden is on the defendant to see that

these prerequisites are [met].” State v. Armstrong, 126 S.W.3d 908, 910 (Tenn. 2003). As

our supreme court has explained:

       [W]here questions of law involve the validity of searches and the admissibility
       of statements and confessions, etc., the reasons relied upon by defendant in the
       trial court at the suppression hearing must be identified in the statement of the
       certified question of law and review by the appellate courts will be limited to
       those passed upon by the trial judge and stated in the certified question, absent
       a constitutional requirement otherwise. Without an explicit statement of the
       certified question, neither the defendant, the State nor the trial judge can make
       a meaningful determination of whether the issue sought to be reviewed is
       dispositive of the case. Most of the reported and unreported cases seeking the
       limited appellate review pursuant to Tenn.R.Crim.P. 37 have been dismissed
       because the certified question was not dispositive.

State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The defendant’s appeal must now be

added to the ever-growing list of appeals that have been dismissed because the defendant

failed to properly preserve a dispositive certified question.



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       The defendant’s question addresses only the issue of whether the city ordinance has

been preempted by state law. The question fails to consider whether the traffic stop could

nonetheless be constitutional if it was performed based on a facially valid law that was

subsequently determined to be preempted, or a related issue, whether the evidence resulting

from such a stop would necessarily need to be suppressed if the officer involved was acting

reasonably. Under the federal constitution, good faith on the part of a police officer plays

a significant role in suppression issues. See, e.g., Davis v. United States, 131 S. Ct. 2419,

2429 (2011) (“Indeed, in 27 years of practice under [the] good-faith exception, we have

‘never applied’ the exclusionary rule to suppress evidence obtained as a result of

nonculpable, innocent police conduct.”). In fact, under federal law, it would appear settled

that suppression would not be warranted on these facts. See Illinois v. Krull, 480 U.S. 340,

350 (1987) (“If [a] statute is subsequently declared unconstitutional, excluding evidence

obtained pursuant to it prior to such a judicial declaration will not deter future Fourth

Amendment violations by an officer who has simply fulfilled his responsibility to enforce the

statute as written.”).




       Our state constitution, of course, may afford criminal defendants greater protection

than that afforded by the federal constitution. See, e.g., State v. Richards, 286 S.W.3d 873,

878 (Tenn. 2009); State v. Cox, 171 S.W.3d 174, 183 (Tenn. 2005) (“[I]n the search and

seizure arena, we acknowledge that on occasion this Court has applied a common sense



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‘reasonableness’ standard that tends to provide greater protection for the constitutional rights

of citizens than the baseline level of protection guaranteed by the federal constitution.).

Tennessee courts have repeatedly passed on opportunities to recognize an officer’s “good

faith” as an exception to the exclusionary rule in other contexts. See, e.g., State v. Carter,

16 S.W.3d 762, 768 n.8 (Tenn. 2000) (“[T]his Court has yet to adopt the [good faith]

exception.”); State v. Bearden, 326 S.W.3d 184, 188 (Tenn. Crim. App. 2010) (“Tennessee,

however, has not adopted this ‘good faith exception.’”). However, this does not alter the fact

that there is no language appearing anywhere in the certified question that asks this court to

consider the issue of whether the traffic stop was in fact unconstitutional—and suppression

of the evidence warranted—in the event that this court should agree with the defendant that

the ordinance at issue was invalid. In theory, there is nothing that would prevent this court

from holding that an officer’s good faith reliance on a facially valid ordinance was relevant

to the constitutional inquiry in this particular context or upholding the seizure simply because

the officer was acting reasonably under the circumstances. Cf. Brigham City v. Stuart, 547

U.S. 398, 403 (2006) (“[T]he ultimate touchstone of the Fourth Amendment is

‘reasonableness . . . .’”). We further observe that the adoption of any rule that would

necessarily require the exclusion of all evidence seized as a result of an officer’s reasonable

efforts to enforce a facially valid statute (later declared unconstitutional) would add

considerable unforeseen collateral consequences to the already forceful act of exercising the

hefty power of judicial review.



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       The defendant’s failure to include any language concerning the legal consequences

of a seizure conducted pursuant to a facially valid ordinance (and the State’s failure to point

out this deficiency) is puzzling given that the transcripts reflect that both parties argued about

this issue in the court below. Regardless of the cause of this omission, we conclude that the

defendant’s certified question as phrased is not dispositive of his case.




                                       CONCLUSION




       For the foregoing reasons, the defendant’s appeal is dismissed.




                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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