         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                   August 16, 2005 Session

             STATE OF TENNESSEE v. SHANNON A. HOLLADAY

                    Appeal from the Criminal Court for Anderson County
                        No. A4CR0044     James B. Scott, Jr., Judge



                    No. E2004-02858-CCA-R3-CD - Filed February 8, 2006


An Anderson County grand jury indicted the defendant, Shannon A. Holladay, for one count of
vehicular homicide by intoxication, a Class B felony, and one count of vehicular homicide by
recklessness, a Class C felony. Before trial, the defendant filed a motion to suppress the evidence
obtained from the air bag sensor module in the defendant’s car, which the Anderson County Criminal
Court granted. The state appeals, contending that the trial court erred in granting the defendant’s
motion to suppress. We dismiss this case for lack of jurisdiction.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER , J.,
joined. GARY R. WADE, P.J., filed a concurring opinion.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General,
for the appellant, State of Tennessee.

J. Thomas Marshall, Jr., District Public Defender, for the appellee, Shannon A. Holladay.

                                             OPINION

         This case relates to the defendant’s involvement in a fatal car accident. The defendant
alleged in her motion to suppress that Tennessee Highway Patrol officers obtained a reading from
her air bag sensor module during a warrantless search of her car and that no exception to the general
warrant requirement existed to justify the search. The trial court granted the defendant’s motion, and
the state appealed pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure.

        Tennessee Highway Patrol Trooper Bill Fox was the only witness to testify at the suppression
hearing. Trooper Fox testified that he was a crash reconstructionist for the Critical Incident
Response Team of the Tennessee Highway Patrol. He said Trooper Crumpley contacted him the day
after the accident to run a test on the air bag sensor module in the defendant’s car. He said Trooper
Crumpley told him that the car had crossed the centerline and hit a Ford pick-up truck head on but
revealed nothing else about the accident. Trooper Fox said he had been trained to use the crash data
retrieval system but acknowledged this was the first accident investigation in which he had used the
equipment.

        Trooper Fox testified he met Trooper Crumpley at Lowe’s Towing in Clinton, Tennessee.
Trooper Fox said the air bag sensor module in the defendant’s car was located underneath the carpet
under the passenger’s seat. He said he made a one or two inch cut in the carpet to gain access to the
module. He said he took a reading from the module that loaded the pre-crash data onto his laptop
computer. He testified that the pre-crash data was only for the five seconds before the air bag
deployed and that it consisted of speed, engine speed, throttle, braking, seatbelts, and the number of
times the ignition was turned on and off.

        Trooper Fox testified that he did not run this test on the Ford pick-up truck because at the
time, the highway patrol only had the equipment to read the air bag sensor modules in General
Motors cars. He said that he had been certified to take readings off the modules since February 5,
2003. He said he responded to approximately sixty fatal crashes in 2003, after he was certified, and
this was the only accident where he used the crash data retrieval system. Trooper Fox said he neither
obtained a search warrant nor considered obtaining one.

       After argument by counsel, the trial court asked counsel to submit memorandum of law and
took the motion under advisement. The trial court granted the defendant’s motion, stating

                       The parties have stipulated that the automobile in question is
               subject to a reasonable expectation of privacy even in a damaged or
               unmoveable condition. Therefore, the burden shifts to the state to
               prove the evidence obtained by law enforcement (Highway Patrol)
               was obtained lawfully and within the protected realms of reasonable
               governmental activities. This burden by the state is uniquely
               embraced in the gadgetry of the automobile industry and the
               computerized mechanism measuring the performance of the history
               of the operation of the vehicle that may incriminate the driver.

                      The Court cannot find that the proof supports any common
               exceptions to the requirements of issuing a search warrant. A search
               warrant was not used in this case, and the Court finds there are no
               reasonable exceptions to a warrant requirement. Therefore, the Court
               suppresses the evidence obtained by the tapping of the internal record
               contained in the computer module.

                      It is therefore ordered, adjudged, and decreed that the
               evidence addressed in the Motion to Suppress is suppressed for
               reasons given.


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        On appeal, the state contends that the trial court erred in granting the defendant’s motion to
suppress. It claims that the defendant had no reasonable expectation of privacy in the equipment
or safety features of the defendant’s vehicle. The state asserts that the defendant’s car was an
instrument of the crime in which the defendant could have no expectation of privacy. The defendant
asserts that she had an expectation of privacy in her car and that the state stipulated she had such a
privacy interest at the suppression hearing. The defendant also asserts that the search does not fit
any of the exceptions to the general warrant requirement.

         We believe we first must address whether this court has jurisdiction over the state’s appeal
from the trial court’s suppression order pursuant to Rule 3(c) of the Tennessee Rules of Appellate
Procedure. The state’s notice of appeal states: “Comes the State pursuant to T.R.A.P.3 and appeals
the Order heretofore entered in this case on November 2, 2004 suppressing all the State’s evidence
in this case. The Suppression hearing was held on August 20, 2004.”

       Rule 3(c) provides only the following circumstances in which the state may appeal as of right
in criminal actions:

               In criminal actions an appeal as of right by the state lies only from an
               order or judgment entered by a trial court from which an appeal lies
               to the Supreme Court or Court of Criminal Appeals: (1) the
               substantive effect of which results in dismissing an indictment,
               information, or complaint; (2) setting aside a verdict of guilty and
               entering a judgment of acquittal; (3) arresting judgment; (4) granting
               or refusing to revoke probation; or (5) remanding a child to the
               juvenile court. The state may also appeal as of right from a final
               judgment in a habeas corpus, extradition, or post-conviction
               proceeding.

T.R.A.P. 3(c) (emphasis added). Rule 3(c) does not require an order of dismissal as a prerequisite
to the state’s appeal. State v. Stephen Udzinski, Jr., No. 01C01-9212-CC-00380, Dickson County,
slip op. at 2 (Tenn. Crim. App. Nov. 18, 1993). For example, if a trial court’s order has the
substantive effect of dismissing the indictment, then an appeal pursuant to Rule 3(c) is proper. State
v. Phillips, 30 S.W.3d 372, 373 (Tenn. Crim. App. 2000); State v. Collins, 35 S.W.3d 582, 584
(Tenn. Crim. App. 2000). However, when the trial court’s suppression of evidence does not
automatically result in dismissal of the case, “the record should contain unambiguous information
as to how the court’s ruling affects the case.” Udzinski, slip op. at 2; see also Phillips, 30 S.W.3d
at 374 n.2 (stating the court would entertain a Rule 3(c) appeal as of right because the state’s denied
motion for an interlocutory appeal stated that it could not carry its burden of proof at trial without
the suppressed statements because the victim was very young and there were no other witnesses).

        The appellant bears the burden of providing an adequate record in order to allow meaningful
review on appeal. State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993). In this regard, we do not
believe the statement in the notice of appeal constitutes evidence of the fact asserted. We also note


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that although the state stated in its notice of appeal that the trial court’s order suppressed “all the
State’s evidence in this case,” it actually suppressed only “the evidence obtained by the tapping of
the internal record contained in the computer module.” The record reflects that the defendant was
indicted on alternative counts of vehicular homicide by intoxication and by recklessness. To convict
a defendant of vehicular homicide by intoxication, the state must prove that the defendant drove or
was in physical control of a motor vehicle on a public road or in an area frequented by the public
while under the influence of an intoxicant or while the alcohol concentration in the defendant’s blood
was .08% or more. See T.C.A. §§ 39-13-213, 55-10-401(a). Because the air bag sensor module
would not show the defendant was under the influence of an intoxicant or had a blood alcohol
concentration of .08% or higher, the first count of the indictment charging vehicular homicide by
intoxication had to have been based on evidence in addition to the air bag sensor module. The state’s
assertion in its notice of appeal is not supported by the record.

         Regarding the vehicular homicide by recklessness count, the trial court’s order does not
preclude the state from introducing evidence from the accident investigation or calling a
reconstruction expert to give his or her opinion on the cause of the accident. We note that experts
give opinion testimony about the very evidence suppressed in this case without relying on the data
retrieved from air bag sensor modules. See State v. Farner, 66 S.W.3d 188, 206-08 (Tenn. 2001)
(holding that a police officer’s testimony using a scientific formula to determine the speed of cars
involved in an accident was admissible); see also State v. Charles Drake, No. E2004-00247-CCA-
R3-CD, Knox County, slip op. at 5 (Tenn. Crim. App. June 6, 2005) (discussing the methods used
by accident reconstructionists for both the state and the defense); State v. Jerome D. Upman, No.
03C01-9402-CR-00052, Hamblen County, slip op. at 3-4 (Tenn. Crim. App. Aug. 2, 1994) (holding
that an accident reconstructionist’s testimony about the speed of the defendant’s car was admissible).
Trooper Fox testified at the suppression hearing that since he had been trained to use the crash data
retrieval system, there had been approximately sixty fatal accidents investigated and that this was
the only accident in which the crash data retrieval system was used.

         Nothing in the record exists to indicate that the suppression of the information taken from
the air bag sensor module effectively results in the dismissal of either count of the indictment. In
fact, the record indicates to the contrary. At the motion to suppress hearing, the state told the trial
court that the police seized the car “as a piece of evidence in a vehicular homicide case,” not that it
was the only evidence it had. The state also told the court that the reason officers took the reading
from the air bag sensor module is because they knew “the car went across the centerline and you had
a head-on crash. They are doing an investigation.” The air bag sensor module would not have told
officers what lane the car was in or how the impact occurred. The prosecutor’s statements at the
motion to suppress hearing are inconsistent with the state’s assertion in its notice of appeal that the
information from the sensor constituted “all the State’s evidence,” and we decline to give the
incredible assertion the weight necessary to make this appeal proper under Rule 3. We conclude that
this court does not have Rule 3 jurisdiction. See Collins, 35 S.W.3d at 584 (stating that an appeal
pursuant to Rule 9 or Rule 10 of the Tennessee Rules of Appellate Procedure are “the only
procedures available for the State to seek review of an interlocutory order which does not have the
substantial effect of dismissing the charges”).


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         We now determine whether we should suspend the rules pursuant to Rule 2 of the Tennessee
Rules of Appellate Procedure to address the appeal. Rule 10 of the Tennessee Rules of Appellate
Procedure allows an extraordinary appeal of interlocutory orders when it is established that 1) the
ruling of the court below represents a fundamental illegality, 2) the ruling constitutes a failure to
proceed according to the essential requirements of the law, 3) the ruling is tantamount to the denial
of either party of a day in court, 4) the action of the trial judge was without legal authority, 5) the
action of the trial judge constituted a plain and palpable abuse of discretion, or 6) either party has
lost a right or interest that may never be recaptured. State v. Willoughby, 594 S.W.2d 388, 392
(Tenn. 1980). Upon review, we conclude that the trial court did not depart from the accepted and
usual course of proceedings. The Advisory Commission Comments to Rule 10 note that the
circumstances in which review is available under Rule 10 are very narrow. See T.R.A.P. 10. We
conclude that the state has failed to establish any of the above factors allowing a Rule 10
extraordinary appeal. We believe this appeal is improper, and we dismiss the state’s appeal.

                                           CONCLUSION

       Based on the foregoing and the record as a whole, we dismiss the state’s appeal.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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