        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                         Assigned on Briefs October 13, 2015

          STATE OF TENNESSEE v. THOMAS GEORGE HEADLA

                  Appeal from the Circuit Court for Sevier County
                       No. 18798-III Rex H. Ogle, Judge


              No. E2015-00560-CCA-R3-CD – Filed December 30, 2015


The Defendant, Thomas George Headla, pleaded guilty in the Circuit Court for Sevier
County to driving under the influence (DUI), a Class A misdemeanor. See T.C.A. § 55-
10-401 (2012) (amended 2013, 2015). The trial court sentenced the Defendant to eleven
months, twenty-nine days suspended to probation after forty-eight hours in confinement.
On appeal, the Defendant presents a certified question of law regarding the legality of the
traffic stop. We affirm the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ. joined.

Bryan E. Delius and Bryce McKenzie, Sevierville, Tennessee, for the appellant, Thomas
George Headla.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
James Dunn, District Attorney General; and Gregory Eshbaugh and Bradley Jones,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

      This case relates to a traffic stop of the Defendant‟s sport utility vehicle (SUV)
based upon an anonymous 9-1-1 call and subsequent observations by a police officer.
The Defendant filed a motion to suppress the evidence obtained as a result of the stop,
contending that the officer lacked reasonable suspicion or probable cause to initiate a
stop.

       At the suppression hearing, Sevierville Police Officer Graham Brantley testified
that he was certified in Tennessee highway safety standard field sobriety testing. Officer
    Brantley said that around midnight on January 22, 2013, dispatch advised him that a 9-1-
    1 caller reported a reckless driver in a “white SUV, possibly a Tahoe Suburban, a larger
    SUV model.” After Officer Brantley turned onto Highway 66, dispatch advised him that
    his patrol car was behind the 9-1-1 caller and that “the vehicle . . . was the one farther up
    the road.” Officer Brantley said that he observed an SUV matching the description
    provided by the 9-1-1 caller, that the SUV was preparing to turn left, and that he followed
    it. Officer Brantley stated,

           As I fell in behind [the SUV], it began to go through the intersection of
           Huffaker and 66 at a very slow rate. It began to go up Huffaker. As it
           approached the stop sign for Huffaker and Grandview, it stopped
           approximately six feet short of the stop sign. It pulled up a little bit more
           and stopped again and then it began to turn right onto Grandview . . . . [It]
           swung a wide turn and began traveling on the left side of Grandview Drive.

           The video recording from Officer Brantley‟s police cruiser was played for the trial
    court. In the recording, Officer Brantley turned onto Grandview Drive. A white SUV
    was visible on the roadway ahead of Officer Brantley‟s cruiser. The SUV drifted
    between the middle and left sides of the roadway before drifting to the far left side of the
    roadway. Officer Brantley activated his blue lights, and the SUV continued driving
    slowly on the left side of the roadway before turning right into a driveway.1

           Officer Brantley testified that Grandview Drive was a “relatively straight,” flat,
    and undivided two-way road. He said that at the time he stopped the SUV, no cars were
    parked along the road, no vehicles were traveling on the road, and no construction zones
    were in the area. Officer Brantley said that he observed the SUV for about two minutes
    before activating his blue lights.

            On cross-examination, Officer Brantley testified that the Defendant never
    exceeded the speed limit or “weaved” within his lane of travel and that the Defendant
    turned appropriately at a traffic light and maintained his lane of travel on Huffaker Road
    before the stop sign. Officer Brantley said that stopping short of a stop sign was not a
    traffic violation. He stated that the Defendant passed a van parked in a driveway with its
    bumper two to three feet from the right side of the road and that in Officer Brantley‟s
    experience, cars were routinely parked on Grandview Drive.

          Officer Brantley testified that he did not know whether the 9-1-1 caller “had an
    axe to grind” with the Defendant. Officer Brantley stated that he did not ask the

1
     The recording as contained in the record continued to show field sobriety tests administered by
    Officer Brantley, but the record reflects that the trial court did not view this part of the recording
    at the suppression hearing.
                                                     -2-
dispatcher to investigate the caller. He said that he did not observe any suspicious
activity before the Defendant turned off Highway 66. Officer Brantley stated that
“[a]mong other indicators,” the reason he stopped the Defendant was “the position of the
vehicle in relation to the roadway[.]”

        Upon examination by the trial court, Officer Brantley testified that with his
certification in field sobriety testing, he observed “various indicators of [impaired]
driving that aren‟t necessarily traffic violations, such as negotiating curves slowly,
stopping short, [and] misjudgment of distances[.]”

       Thomas Ham, a private investigator, testified for the defense that he traveled to
Grandview Drive multiple times to photograph the area where the traffic stop occurred
and to document traffic and parking patterns. He said that it was common for vehicles to
park along the right side of Grandview Drive “in the actual travel path[.]” Photographs
of Grandview Drive taken by Mr. Ham after the night of the stop showed vehicles parked
on the street.

       On cross-examination, Mr. Ham testified that the police cruiser video recording
did not show vehicles parked on the right side of Grandview Drive but that there was “a
white van . . . near the edge of the roadway, and that‟s at also the point where [the
Defendant‟s] vehicle [moves] . . . as if he is moving over to give distance to that vehicle.”

       The prosecutor contended that reasonable suspicion and probable cause existed to
stop the Defendant. He argued that the Defendant‟s SUV matched the description and
location of the vehicle described by the 9-1-1 caller and that Officer Brantley observed
“indicator[s] of impairment,” including the Defendant‟s driving slowly, stopping short of
the stop sign, and driving on the left side of Grandview Drive. The prosecutor also
argued that because Grandview Drive was a two-way street, the Defendant was in
violation of the statute requiring vehicles to drive on the right side of the road. See
T.C.A. § 55-8-115 (2014).

       The Defendant argued that the sole reason for the traffic stop was the position of
the Defendant‟s SUV on Grandview Drive, which could have been explained by the
general presence of parked vehicles on the right side of the road. The Defendant also
argued that he did not violate Code section 55-8-115 because he stayed “as much as
practical to the right side of the roadway[.]”

         The trial court denied the Defendant‟s motion to suppress. The court found that
the Defendant “was well over the middle of the road, that in an[d] of itself, maybe being
a little bit over the center of an unmarked road, might not be enough, but it does appear to
the Court on the video that he was way over.” The court also found that the 9-1-1 caller‟s
information was partially confirmed by Officer Brantley. The court concluded that the
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information provided by the 9-1-1 caller, when combined with Officer Brantley‟s
observations, created probable cause. The court stated “that there was nothing on the
roadway where the defendant was stopped . . . [and the Defendant] went . . . that far over
in the other lane . . . I think that gave this officer probable cause to stop him.”

       After the suppression hearing, the Defendant pleaded guilty and reserved the
following certified question:

       Whether the trial court erred in denying the Defendant‟s motion to
       suppress when the Defendant‟s vehicle was seized without warrant
       pursuant to a traffic stop in violation of the Article 1, section 7 of the
       Tennessee Constitution and the Fourth and Fourteenth Amendments of
       the United States Constitution where no reasonable suspicion supported
       an investigatory stop, no probable cause of a traffic violation existed, and
       no exception to the warrant requirement or consent supported the stop
       where the Defendant drove left of center on an undivided roadway and
       no other traffic violations were observed by law enforcement.

        Tennessee Criminal Procedure Rule 37(b)(2)(A) provides that an appeal can be
taken from a plea of guilty if the Defendant enters into a plea agreement and explicitly
reserves with the consent of the State and the trial court a certified question of law that is
dispositive of the case. See Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv); State v. Armstrong,
126 S.W.3d 908 (Tenn. 2003). “An issue is dispositive when this court must either
affirm the judgment or reverse and dismiss. An issue is never dispositive when we might
reverse and remand[.]” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).
Furthermore, the fact that the defendant, the State, and the trial judge have agreed the
issue is dispositive does not bind this court. State v. Preston, 759 S.W.2d 647, 651
(Tenn. 1988). “[T]he appellate courts must . . . determine if the record on appeal
demonstrates how that question is dispositive of the case . . . . If the appellate court does
not agree that the certified question is dispositive, appellate review should be denied.”
Id. (citing State v. Jennette, 706 S.W.2d 614, 615 (Tenn. 1986)); see State v. Dailey, 235
S.W.3d 131, 134-35 (Tenn. 2007). The certified question must also clearly identify “the
scope and limits of the legal issue reserved.” See Tenn. R. Crim. P. 37(b)(2)(A)(ii).

        The Defendant contends that the stop was not supported by reasonable suspicion,
arguing that our supreme court‟s opinion in State v. Hanning, 296 S.W.3d 44 (Tenn.
2009), was overruled by the United States Supreme Court in Navarette v. California, 134
S.Ct. 1683 (2014). The State responds that the certified question is not dispositive of the
case, that consideration of the effect of Navarette on Hanning is outside the scope of the
certified question, and that the stop was supported by reasonable suspicion and probable
cause.

                                             -4-
        We agree with the Defendant that the certified question is dispositive of the case
because the sole evidence of the Defendant‟s intoxication was obtained as a result of the
traffic stop and that absent Officer Brantley‟s observations, reasonable suspicion or
probable cause would not have existed to support the traffic stop. The question identifies
the scope and limits of the issue reserved. We therefore consider the question on its
merits.

        We agree with the State that consideration of Navarette is outside the scope of the
certified question. Navarette and Hanning discuss the reliability of anonymous 9-1-1
callers and how that determination bears on reasonable suspicion. The certified question
raises Officer Brantley‟s observations as a basis for the stop, not the 9-1-1 call. As a
result, we will consider the certified question only in the context of Officer Brantley‟s
observations.

       A trial court‟s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions
about the “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.” Odom, 928 S.W.2d at 23. The prevailing party is entitled to the “strongest
legitimate view of the evidence and all reasonable and legitimate inferences that may be
drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State
v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The trial court‟s application of the law to its
factual findings is a question of law and is reviewed de novo on appeal. State v. Yeargan,
958 S.W.2d 626, 629 (Tenn. 1997).

       The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect individuals from unreasonable searches and seizures.
See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. Warrantless seizures are “presumed
unreasonable, and evidence discovered as a result thereof is subject to suppression unless
the State demonstrates that the . . . seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997); see Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v.
Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

       A law enforcement officer‟s initiating a traffic stop constitutes a seizure pursuant
to the United States and Tennessee Constitutions. Whren v. United States, 517 U.S. 806,
809-10 (1996); see Delaware v. Prouse, 440 U.S. 648, 653 (1979); see also State v.
Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997); State v. Pulley, 863 S.W.2d 29, 30 (Tenn.
1993). However, a police officer is permitted to initiate a traffic stop without a warrant
for the purpose of a brief investigatory stop based upon “specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant [an]
                                             -5-
intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968); see Binnette, 33 S.W.3d at 218. The
objective standard for determining whether a police officer has specific and articulable
facts that a suspect has committed a crime or is about to commit a crime focuses on
whether “the facts available to the officer at the moment of the seizure . . . warrant a man
of reasonable caution in the belief that the action taken was appropriate[.]” Terry, 392
U.S. at 21-22 (internal quotation marks and citations omitted); see State v. Garcia, 123
S.W.3d 335, 344 (Tenn. 2003). “Reasonable suspicion is a particularized . . . basis for
suspecting the subject of a stop of criminal activity, and it is determined by considering
the totality of the circumstances surrounding the stop.” Binette, 33 S.W.3d at 218
(internal citations omitted). This determination includes considerations relative to “„(i)
the public interest served by the seizure, (ii) the nature and scope of the intrusion, and
(iii) the objective facts upon which the law enforcement officer relied in light of his
knowledge and experience.‟” Pulley, 863 S.W.2d at 34 (quoting United States v.
Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J., concurring)). The objective facts
upon which the officer relied may include, but are not limited to, the officer‟s
observations, information received from fellow officers, information received from
citizens, and the “pattern of operation of certain offenders.” State v. Watkins, 827 S.W.2d
293, 294 (Tenn. 1992). “As a general rule . . . the stop of an automobile is
constitutionally reasonable, under both the state and federal constitutions, if the police
have probable cause or reasonable suspicion to believe that a traffic violation has
occurred. State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997) (citing Whren v. United
States, 517 U.S. 806 (1996)).

       The record reflects Officer Brantley‟s testimony that he observed the Defendant
turning slowly and stopping short of a stop sign and that according to Officer Brantley‟s
training, these were indicators of impairment. Officer Brantley also testified, and the
police cruiser video recording reflected, that the Defendant failed to drive upon the right
half of the roadway, which was a traffic violation. See T.C.A. § 55-8-115. The trial
court noted the Defendant‟s driving “that far over” on the left side of the road and the
absence of cars parked on the right side of the road. Officer Brantley‟s observations gave
rise to specific, articulable grounds for reasonable suspicion that the Defendant was
driving while under the influence. In addition, Officer Brantley had probable cause to
conduct a stop based upon a traffic violation. The evidence does not preponderate
against the trial court‟s finding that the stop was supported by probable cause. The
Defendant is not entitled to relief on this basis.

      In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.


                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE
                                            -6-
