             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE           FILED
                             NOVEMBER 1998 SESSION
                                                          January 29, 1999

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )   C.C.A. NO. 01C01-9802-CC-00087
             Appellant,               )
                                      )   MONTGOMERY COUNTY
VS.                                   )
                                      )   HON. JOHN H. GASAWAY, III,
MICHAEL K. CLARK,                     )   JUDGE
                                      )
             Appellee.                )   (State Appeal --- DUI, Reckless
                                          Driving, Refusal to Submit to Blood
                                          Alcohol Test, and Driving on Revoked
                                          License)


FOR THE APPELLANT:                        FOR THE APPELLEE:


JOHN KNOX WALKUP                          MICHAEL JONES
Attorney General & Reporter               District Public Defender

KAREN YACUZZO                             CHARLES S. BLOODWORTH
Asst. Attorney General                    Asst. District Public Defender
John Sevier Bldg.                         109 S. Second St.
425 Fifth Ave., North                     Clarksville, TN 37040
Nashville, TN 37243-0493

JOHN W. CARNEY
District Attorney General

LANCE A. BAKER
Asst. District Attorney General
204 Franklin St., Suite 300
Clarksville, TN 37040


OPINION FILED:____________________



REMANDED FOR FURTHER FINDINGS


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was charged by indictment with driving while under the

influence (DUI), reckless driving, refusing to submit to a blood alcohol test, and driving

on a revoked license. He moved to dismiss the charges on the basis that the police

authorities made an unlawful traffic stop. Following a hearing, the trial court granted the

defendant’s motion and dismissed the indictment. The State now appeals. The sole

issue on appeal is whether the trial court properly dismissed the indictment. We remand

the case for further findings from the trial court.



              On August 31, 1997, Officer Shane Dortch of the Clarksville Police

Department received a radio dispatch call to respond to the area of Five Points Market.

Apparently, a citizen had complained to the police department that four “very intoxicated”

people were in a 1978 Oldsmobile vehicle near the store.            When Officer Dortch

responded to the radio dispatch call, he saw the Oldsmobile in the store parking lot. As

the Oldsmobile left the store parking lot, Officer Dortch followed it. Approximately two-

tenths of one mile away, Officer Dortch stopped the Oldsmobile and arrested the

defendant, who was driving. On the arrest warrant, the only reason Officer Dortch gave

for stopping the defendant’s car was that a complaint of four “very intoxicated” individuals

in a 1978 Oldsmobile had been received.



              At the hearing on the motion to dismiss, Officer Dortch testified that after

he stopped the defendant’s car, he arrested the defendant because he smelled strongly

of alcohol and was unsteady on his feet. When asked why he decided to stop the

Oldsmobile in the first place, Officer Dortch replied that he had observed the defendant

commit two traffic violations---i.e., driving twenty-four to twenty-six miles per hour in a

twenty-mile-per-hour zone and turning right onto another street without signaling---and

that he had suspected the defendant of DUI because of the complaint received. When

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asked why the warrant reflected only that the defendant was arrested based on a citizen’s

complaint, he replied that he only put on the warrant what he believed was necessary for

establishing probable cause. Officer Dortch admitted that he had never written a

speeding ticket for somebody driving four to six miles over the speed limit. He also

admitted that had it not been for the radio broadcast he received from dispatch, he

probably would not have stopped the defendant’s car since he was not in the area at the

time.



               Following arguments, the trial court granted the defendant’s motion to

dismiss, stating as follows:

        A police officer may make an investigatory stop when the officer has a
        reasonable suspicion supported by specific and articulable facts that a
        criminal offense has been or is about to be committed.

               An investigatory stop may be based upon information contained in
        a police radio broadcast issued by a law enforcement agency. It is not
        necessary that the officer making the investigatory stop have personal
        knowledge of the facts contained in the radio broadcast, but the
        prosecution does have the burden of establishing by a preponderance of
        the evidence that the person or agency that’s responsible for the broadcast
        did have specific and articulable facts that a criminal offense had been or
        was about to be committed.

                In order to determine whether a police officer’s reasonable suspicion
        is supported by specific and articulable facts, the Court must consider the
        totality of the circumstances. Based on the evidence before me, the Court
        finds that Officer Dortch received a radio broadcast from his dispatch, that
        there was a specific vehicle with four occupants in it who were intoxicated.

                 He went to the location given to him and saw the car and followed
        it and stopped it. The warrants that he swore to indicate that he stopped
        the vehicle because of the information that he had received. His testimony
        is that the vehicle he observed may have been speeding by going some 24
        miles an hour in a 20 mile zone, and that he remembers that it did not
        make a turn signal.

               When asked if he would have stopped the vehicle had it not been for
        the broadcast over the radio, he quite candidly indicted [sic] probably not.
        The standard that the Court has to apply is whether or not the State has
        met its burden of establishing by a preponderance of the evidence that it’s
        more likely than not.

              In this particular case, considering all of the facts and circumstances,
        the Court believes that the weight of the evidence supports the Defendant’s
        contention that the stop was made because of the broadcast. . . .

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              In a situation like that, you need to get behind the car and follow it,
       and see if there’s anything that independently alerts the officer so that he
       can stop based on that person’s observation.

              The motion is granted.



              The temporary detention of individuals during the stop of a vehicle by police

constitutes a “seizure” under the meaning of the Fourth Amendment of the United States

Constitution and article 1, section 7 of the Tennessee Constitution. Whren v. United

States, 517 U.S. 806 (1996); State v. Vineyard, 958 S.W.2d 730 (Tenn. 1997). The stop

of a vehicle, however, “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 . . . despite the subjective motivation of the police officer

making the stop.” Vineyard, 958 S.W.2d at 734 (citing Whren, 517 U.S. at [813], 116 S.

Ct. at 1774)(footnote omitted).



              The record indicates that the trial court did not apply the proper legal

standard in this case. Contrary to the trial court’s statement, it was not necessary for the

State to prove that the person or agency responsible for the radio broadcast had specific

and articulable facts that a criminal offense had been or was about to be committed.

Neither was the State required to prove that it was more likely than not that Officer Dortch

would have stopped the defendant’s car had it not been for the radio broadcast. Rather,

the dispositive inquiry in this case is whether Officer Dortch had probable cause

independent of the information in the radio broadcast to stop the defendant’s car. Whren,

517 U.S. at 819; Vineyard, 958 S.W.2d at 734. Under Whren and Vineyard, it is

irrelevant whether subjectively, Officer Dortch was motivated to stop the defendant’s car

because of the radio broadcast as long as objectively, probable cause to stop the

defendant’s car existed. Whren, 517 U.S. at 813-17; Vineyard, 958 S.W.2d at 734.



              Despite the fact that the warrant shows the defendant was arrested only

                                              4
because of a citizen’s complaint, Officer Dortch testified that he observed the defendant

traveling four to six miles over the twenty-mile-per-hour speed limit and turning right onto

another street without signaling, both of which are actions that would justify a traffic

citation. See T.C.A. §§ 55-8-103, -143, -152. If Officer Dortch’s testimony that he

witnessed two traffic violations is believed, he had probable cause to stop the defendant’s

car, independent of his subjective suspicions that the defendant was driving while

intoxicated, and thus, the stop must be deemed legal. Whren, 517 U.S. at 813-17;

Vineyard, 958 S.W.2d at 734. If Officer Dortch’s testimony is not believed, however, then

the only evidence of why the defendant’s car was stopped is the warrant, which cites only

the citizen’s complaint, and thus, the stop must be deemed illegal.



              Unfortunately, we cannot discern from the record whether the trial court

gave credence to Officer Dortch’s testimony that he observed two traffic infractions.

Accordingly, we remand to allow the trial judge to make specific findings on the record

regarding whether Officer Dortch saw the defendant commit any traffic infractions. These

findings will determine whether, in fact, Officer Dortch had probable cause to stop the

defendant’s car, which in turn will dictate the disposition of this case. Once these findings

are made, the clerk is ordered to supplement the record with these findings for our further

review.



                                                  _______________________________
                                                  JOHN H. PEAY, Judge


CONCUR:



______________________________
GARY R. WADE, Presiding Judge



______________________________
JERRY L. SMITH, Judge

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