             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE                 FILED
                          OCTOBER 1998 SESSION
                                                           December 21, 1998

                                                          Cecil W. Crowson
STATE OF TENNESSEE,          )                           Appellate Court Clerk
                             )
             Appellee,       )    No. 01C01-9712-CR-00590
                             )
                             )    Putnam County
v.                           )
                             )    Honorable John Maddux, Judge
                             )    Honorable John Turnbull, Judge
STUART ALLEN JENKINS,        )
                             )    (Certified question of law)
             Appellant.      )


For the Appellant:                For the Appellee:

William A. Cameron                John Knox Walkup
100 S. Jefferson Avenue           Attorney General of Tennessee
Cookeville, TN 38501                     and
                                  Daryl J. Brand
                                  Assistant Attorney General of Tennessee
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  William Edward Gibson
                                  District Attorney General
                                            and
                                  Shawn Fry
                                  Assistant District Attorney General
                                  145 S. Jefferson Avenue
                                  Cookeville, TN 38501-3424




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



               The defendant, Stuart Allen Jenkins, was convicted upon his plea of guilty

in the Putnam County Criminal Court to driving under the influence of an intoxicant

(D.U.I.), first offense, a Class A misdemeanor. He was sentenced as a Range I,

standard offender to eleven months and twenty-nine days confinement in the Putnam

County jail with all but forty-eight hours suspended and the remainder to be served on

probation. He was fined three hundred and sixty dollars. He appeals as of right upon a

certified question of law. See T.R.A.P. 3(b); Tenn. R. Crim. P. 37(b). The state

questions whether the defendant has properly reserved a certified question of law. We

affirm the trial court.



               The defendant was originally charged with D.U.I., D.U.I. per se, simple

possession of marijuana and possession of drug paraphernalia. The charges were

brought after a police officer stopped the defendant upon a suspicion of D.U.I. based

upon an anonymous informant’s report and the officer’s personal observations. The

defendant filed a motion to suppress all evidence obtained after the stop, claiming that

the stop was unconstitutional because the officer lacked specific, articulable facts on

which to justify it. The trial court denied the defendant’s motion, and the defendant

entered into a plea agreement whereby he pled guilty to D.U.I. in exchange for having

the remaining charges dismissed.



               The judgment form filed January 6, 1998, does not reflect that the

defendant reserved a certified question of law, nor does it incorporate by reference an

order setting forth a certified question of law. However, the record reflects that on

November 14, 1997, the date that the trial court accepted the defendant’s guilty plea,

the trial court entered an agreed order relative to the certified question of law. The

order provides as follows:



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                      This matter came on to be heard on the 30th day of
              September, 1997 and October 30, 1997, upon the
              Defendant’s Motion to Suppress, said Motion having been
              heard by the Court and overruled by Judge John Turnbull.
              The parties agreed at the time that if the Motion to Suppress
              had been sustained it would have been dispositive and
              determinative of the case and the case against the Defendant
              would have been dismissed. Following that order overruling
              the Motion to Suppress the Defendant on November 14, 1997,
              entered a plea of guilty to DUI First Offence [sic] reserving his
              right to appeal upon the issue of the suppression motion and
              all parties understood that the appeal was as to the
              correctness of the overruling of the Motion to Suppress and if
              incorrect would have resulted in a dismissal of the Defendant
              and would have been dispositive of the case.

                      Be it therefore, ORDERED, ADJUDGED AND
              DECREED that all parties, including the Court, agree that the
              issue on appeal is the correctness of the order overruling the
              Motion to Suppress and that said Motion would be dispositive
              of this case. Further, by agreement Judge John Maddux is to
              sit by interchange upon taking the plea of guilty and entering
              this order by prior agreement with Judge John Turnbull. The
              appeal will be from a ruling issued by Judge John Turnbull.


The initial question before us is whether the defendant has properly reserved a certified

question of law to invoke our jurisdiction.



              In State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988), our supreme

court succinctly specified the requirements for reserving a certified question of law so

as to invoke appellate jurisdiction:

              Regardless of what has appeared in prior petitions, orders,
              colloquy in open court or otherwise, the final order or judgment
              from which the time begins to run to pursue a T.R.A.P. 3
              appeal must contain a statement of the dispositive certified
              question of law reserved by defendant for appellate review and
              the question of law must be stated so as to clearly identify the
              scope and the limits of the legal issue reserved.

Our supreme court has had occasion to show that strict adherence to the Preston

requirements is expected. See State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn.

1996).

              In the present case, the final judgment does not contain a statement of

the dispositive certified question of law. Likewise, the agreed order relating to the



                                              3
dispositive nature of the motion to suppress fails to specify in any manner the scope or

limits of the legal issue reserved. We view the order’s statement that the issue on

appeal is the correctness of the order overruling the motion to suppress as not

descriptive of any issue in the case. Under these circumstances, we can only say that

the defendant failed to follow the procedural requirements in Preston. Counsel should

take Preston to heart.



              On the other hand, we note that the motion to suppress raises several

issues as follows:

                       There were insufficient specific and articulable facts to
              pull the Defendant over and effect the stop made by the
              officer. Therefore, everything from the illegal stop forward was
              fruit of the poison tree and should be suppressed. Further, the
              Defendant was not
              mirandized [sic] and any statements the Defendant made at
              the time of the stop without being mirandized [sic] should be
              suppressed.

                     The Defendant would aver that on March 24, 1997, on
              I 40 [sic] west of the 284 mile marker Trooper Reaker Bass
              pulled the Defendant over without sufficient reason.

From the whole record, we can determine that the dispositive question of law relates to

whether the trooper had reasonable suspicion to believe that the defendant was driving

under the influence of an intoxicant so as to justify his stopping the defendant’s car

under the Fourth Amendment of the United States Constitution and Article I, Section 7

of the Tennessee Constitution.



              Thus, although Preston has not been followed, the record discloses that

the parties and the trial court agreed that the issue of the legality of the stop of the car

was dispositive of the case and was to be appealed by the defendant. Moreover, we

believe that the record reflects that the issue is finite in scope, adequately stated, and is

dispositive of the case. In this respect, the record contains the information of concern

in Preston, although it does not do so in one order or in the judgment. In order for

substance to prevail over form, we will consider the issue presented by the defendant.


                                              4
              At the suppression hearing, Tennessee Highway Patrol Trooper Reaker

Bass testified that on March 24, 1997, the patrol dispatcher notified him to be on the

lookout for a gold Bronco with license plate number HFW 598. He said that the

dispatcher advised him that it had been reported as possibly involving a drunk driver.

The vehicle was last seen westbound on Interstate 40 around mile marker 299.

Trooper Bass testified that ten to fifteen minutes later, he got behind a gold Jeep

Cherokee with the same plate number going west on Interstate 40 around mile marker

285.



              Trooper Bass testified that he observed the vehicle for approximately one

mile and that it was weaving excessively in the roadway. He explained that this meant

more than twice and said that “when they continuously do it, that’s excessive.” He then

stopped the defendant for suspicion of driving under the influence. On cross-

examination, he acknowledged that the vehicle’s weaving did not go out of the

defendant’s lane of traffic. Also, he acknowledged that photographs represented to be

of the vehicle he stopped showed a vehicle that looked silver, not gold. The defendant

testified that his vehicle is a silver Jeep Cherokee, although he acknowledged that his

license plate number matched the one Trooper Bass received.



              The record also reflects that the relevant highway patrol dispatch log was

submitted to the trial court as a supplement to the record. The discussion among the

trial court and the attorneys regarding the log indicates that two calls regarding a vehicle

with the defendant’s license plate number were received, one being a 9-1-1 call from a

cellular telephone. Unfortunately, the record does not contain either the photographs of

the defendant’s vehicle presented at the hearing or the dispatch log that was submitted

as a supplemental exhibit.




                                             5
              The trial court found that the matching license plate number and

excessive weaving were sufficient to justify the trooper’s stop of the vehicle in terms of

him having reasonable suspicion based upon articulable facts that the defendant was

driving under the influence of an intoxicant, given the informant’s information and the

trooper’s observations. We agree with the trial court.



              In reviewing the trial court’s denial of the suppression motion, we accept

the trial court’s findings of fact unless the evidence preponderates otherwise. See

State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). However, the law that was

applied to those facts is reviewed de novo. Id.



              The police may stop a vehicle if they have reasonable suspicion based

upon specific and articulable facts that an occupant is violating the law. See United

States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574, 2580 (1975); Hughes v.

State, 588 S.W.2d 296, 305 (Tenn. 1979). Reasonable suspicion may be based upon

an anonymous caller’s tip provided that the circumstances show that the information is

sufficiently reliable -- a reliability that is less than that required for probable cause. See

Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990); State v. Pully, 863

S.W.2d 29, 32 (Tenn. 1993).



              As Pully indicates, the analysis involves consideration of the informant’s

basis of knowledge and reliability and of any corroborating circumstances known to the

police. Id. In the present case, although there is no expressed statement of personal

knowledge by the informant, the proximity in the time of the call to Trooper Bass’

sighting of the vehicle, the specific location of the vehicle provided by the informant,

and the nature of the offense reflect that the informant had firsthand knowledge of the

matters reported to the police. Id. Likewise, the detailed description of the vehicle and

its particular location as corroborated by Trooper Bass’ observations lend credibility to



                                              6
the informant. Finally, the weaving observed by Trooper Bass, albeit within the

defendant’s lane of traffic, is another circumstance that lends credence to the potential

for a drunk driver as stated by the informant. Moreover, with the existence of the

circumstances, the potential for serious harm created by a drunk driver on the interstate

is a factor that supports justification for the investigatory stop. See Id. at 33-34.



              We conclude that the trial court correctly denied the defendant’s motion to

suppress. The judgment of conviction is affirmed.



                                                  ________________________________
                                                  Joseph M. Tipton, Judge



CONCUR:


_________________________
Paul G. Summers, Judge



_________________________
Joe G. Riley, Judge




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