            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                              Assigned on Briefs August 20, 2014

                    STATE OF TENNESSEE v. DYLAN M. YACKS

                  Appeal from the Criminal Court for Washington County
                           No. 38131   Robert E. Cupp, Judge


                   No. E2013-02187-CCA-R3-CD - Filed January 13, 3015




The Defendant-Appellant, Dylan M. Yacks, entered a guilty plea to driving under the
influence (DUI), see T.C.A. § 55-10-401 (1) (2012),1 in exchange for a sentence of eleven
months and twenty-nine days, which was suspended after service of two days confinement.
As a condition of his guilty plea, the Defendant-Appellant properly reserved a certified
question of law challenging the constitutionality of the stop and subsequent arrest. Upon our
review, we reverse the judgment of the trial court and vacate the Defendant-Appellant’s
convictions.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                     Convictions Vacated and Case Dismissed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS, J., and D AVID A. P ATTERSON, S P. J., joined.

Donald E. Spurrell, Johnson City, Tennessee, for the Defendant-Appellant, Dylan M. Yacks.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Tony Clark, District Attorney General; and Anthony Clark, Assistant District
Attorney General, for the Appellee, State of Tennessee.




        1
         This offense makes it unlawful for any person to drive an automobile on any public road or
highway while “[u]nder the influence of any intoxicant ... that impairs the driver’s ability to safely operate
a motor vehicle by depriving the driver of the clearness of mind and control of oneself which the driver
would otherwise possess.”
                                          OPINION

        The Defendant-Appellant was indicted for DUI following his April 27, 2012 arrest,
which was initiated by a traffic stop. Soon after his arrest, he filed a motion to suppress
claiming that the officer did not have reasonable suspicion to support the stop of his vehicle.
At the motion to suppress hearing, Officer Mike Castineiras of the Johnson City Police
Department testified that he and his partner observed the Defendant-Appellant driving
through an empty parking lot. He said the vehicle “was reversing . . . in an attempt to make
a turn in the parking lot itself and struck the . . . light pole in the parking lot.” Officer
Castineiras waited for the driver to exit the vehicle and assess the damage; however, no
occupant exited the vehicle. The driver pulled back onto West Walnut Street, and the officer
followed the vehicle to initiate a traffic stop. The officer conceded that when he initiated his
emergency blue lights, he could not see the pole from his vantage point, and he was not
aware of how much damage, if any, had occurred to the pole or the vehicle. The officer also
confirmed that his vehicle had video recording capability; however, it did not have
accompanying audio for the recording. On cross-examination, Officer Castineiras clarified
that it was a noise produced by the impact from the vehicle striking the pole that drew his
attention to the Defendant-Appellant’s vehicle.

       The Defendant-Appellant testified and denied hitting or striking a pole with his
vehicle that would have created a noise on the date of the offense. On cross-examination,
he admitted that he had been drinking and that his consumption of alcohol could have
affected his memory of the night in question.

        The video recording from the officer’s vehicle, a video recording produced by the
defense reconstructing a vehicle striking the same pole, and various photographs showing
the vehicle, the pole, and the area where the offense occurred were all admitted as exhibits
to the hearing. The Defendant-Appellant argued that the video recording from the officer’s
vehicle did not show that the Defendant-Appellant struck the pole. He argued that this was
“obvious” because the car did not stop, and “there was no jolt.” Based on the demonstrative
video reconstructing the events on the night of the offense, defense counsel further argued
that the Defendant-Appellant clearly did not hit the pole. He reasoned that hitting the pole
would have caused the light at the top of the pole to shake, which was not reflected in the
officer’s video. The State argued that the demonstrative video was not an accurate reflection
of the events in question because it was not produced from inside of the officer’s patrol car,
which was unable to capture the light at the top of the pole.




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        Throughout the hearings concerning this case,2 the trial court distinguished an
officer’s mistake of law from an officer’s mistake of fact. By use of several examples,
including a wrongfully issued capias, the trial court explained that when a police officer
believes that an individual has violated the law, as in this case, the officer has reasonable
suspicion to stop that individual even if it is later determined that the officer was mistaken
in his initial belief of wrongdoing. Defense counsel maintained, however, that an officer’s
mistaken belief of an individual’s unlawful acts must be reviewed under an objective, rather
than a subjective standard of reasonableness. In support of his argument that the officer’s
actions were objectively unreasonable, defense counsel pointed out that there was no
violation of the law as evidenced by the video from the officer’s vehicle. In response, the
trial court clarified its ruling and stated that “there was nothing unreasonable about [the
officer] saying he had observed [the vehicle] hit the pole and he hear[d] it.” Alternatively,
the State argued that even if the Defendant-Appellant did not hit the pole, the officer had
reasonable suspicion to believe that he did. After several re-settings, the trial court ultimately
denied the motion to suppress. In its oral findings of fact, the trial court cited several
appellate decisions from this court and determined that Officer Castineiras was credible.3

       The Defendant-Appellant subsequently entered a guilty plea and properly reserved the
following certified question of law for our review:

        Whether the trial court erred in denying [the Defendant-Appellant’s] motion
        to suppress as, at the time the officer conducted the warrantless seizure of the
        defendant’s moving vehicle, no exception to the warrant requirement existed,
        in that, there was no probable cause or reasonable suspicion of criminal
        activity, and no consensual encounter as required by Article I, Section 7 of the
        Tennessee Constitution and the Fourth and Fourteenth Amendments to the
        Constitution of the United States.

                                             ANALYSIS

        As in his motion to suppress, the Defendant-Appellant contends in this appeal that the
arresting officer lacked reasonable suspicion to initiate a stop of his vehicle. In support of
his claim, he points to several inconsistencies between the officer’s affidavit of arrest, the
testimony the officer provided at the motion to suppress hearing, and the video exhibits. In


       2
           The hearing on the motion to suppress occurred on December 14, 2012, and March 4, 2013. The
trial court held a separate hearing to issue a detailed oral ruling on June 17, 2013.
       3
         There was no written order denying the Defendant-Appellant’s motion to suppress contained in the
record on appeal.

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response, the State contends that the officer stopped the Defendant-Appellant based on
violations of Tennessee Code Annotated sections 55-10-105 and 55-10-107, which
collectively make it a crime to leave the scene of an accident involving damage to a fixture.
The State insists that the stop was constitutional because the officer reasonably believed that
the Defendant-Appellant had violated the law. In addition, the State submits that the trial
court credited the testimony of the officer regarding his observations, and the record does not
preponderate against the conclusion of the trial court. For the reasons that follow, we agree
with the Defendant-Appellant.

        The standard of review applicable to suppression issues involves a mixed question of
law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn. 2003). It is well established that
“a trial court’s finding of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The Tennessee
Supreme Court explained this standard in Odom:

       Questions of credibility of the witness, 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. The party prevailing in the trial court is entitled the
       strongest legitimate view of the evidence adduced at the suppression hearing
       as well as all reasonable and legitimate inferences that may be drawn from that
       evidence. So long as the greater weight of the evidence supports the trial
       court’s findings, those findings shall be upheld.

Id. However, this court’s review of a trial court’s application of the law to the facts is de
novo with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001);
(citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997)). The defendant bears the burden of showing that the evidence
preponderates against the trial court’s findings.

       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. I, § 7. A warrantless search or seizure is presumed
unreasonable, and evidence obtained as a result will be suppressed “unless the prosecution
demonstrates by a preponderance of the evidence that the search or seizure was conducted
pursuant to one of the narrowly defined exceptions to the warrant requirement.” Yeargan,
958 S.W.2d at 629 (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)). The
stop of a vehicle and the detention of individuals during the stop amounts to a seizure for
purposes of both the Fourth Amendment to the United States Constitution and article I,
section 7 of the Tennessee Constitution and is thus subject to the reasonableness requirement.
Whren v. United States, 517 U.S. 806, 809-10 (1996); State v. Brotherton, 323 S.W.3d 866,

                                               -4-
870 (Tenn. 2010). Law enforcement authorities must have probable cause or an “articulable
and reasonable suspicion” to believe that a traffic violation occurred when they initiate a
traffic stop without a warrant. Id. Reasonable suspicion exists when “specific and
articulable facts . . . taken together with rational inferences from those facts, reasonably
warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). A mere “inchoate and
unparticularized suspicion or ‘hunch’” is not enough to generate reasonable suspicion. Id.

        The Tennessee Supreme Court has defined reasonable suspicion as a “particularized
and objective basis for suspecting the subject of a stop of criminal activity.” State v. Binette,
33 S.W.3d 215, 218 (Tenn. 2000) (citing Ornelas v. Unites States, 517 U.S. 690, 696 (1996)).
In determining whether a reasonable suspicion is present, the court must consider the totality
of the circumstances, including, but not limited to, the officer’s personal observations and
“rational inferences and deductions that a trained officer may draw from the facts and
circumstances known to him.” Yeargan, 958 S.W.2d at 632. Reasonable suspicion for a
traffic stop will be found to exist “only when the events which occurred leading up to the
stop would cause an objectively reasonable police officer to suspect criminal activity on the
part of the individuals stopped.” State v. Levitt, 73 S.W.3d 159, 172 (Tenn. Crim. App.
2001) (citing Ornelas, 517 U.S. at 695).

       Sections 55-10-105 and 55-10-107(a) of Tennessee Code Annotated, the traffic laws
involved in this case, provide as follows:

       Fixtures. The driver of any vehicle involved in an accident resulting only in
       damage to fixtures or other property legally upon or adjacent to a highway or
       on the premises of any shopping center . . . that are generally frequented by the
       public at large, shall take reasonable steps to locate and notify the owner or
       person in charge of the property of that fact, the driver’s name, address, and
       the registration number of the vehicle that the driver was driving, and shall,
       upon request and if available, exhibit the driver’s license . . . and shall make
       report of the accident when and as required in § 55-10-107.

Id. § 55-10-105.

       Reports. (a) The driver of a vehicle that is in any manner involved in an
       accident resulting in bodily injury to or death to any person, or in which
       damage to the property of any one (1) person, including the driver’s, in excess
       of four hundred dollars ($400) is sustained, shall within twenty (20) days after
       the accident, forward a written report of the accident to the department of
       safety; provided, that persons making written reports to the department



                                               -5-
       pursuant to § 55-12-104 shall not be required to make any additional report
       pursuant to this section, § 55-10-109 or § 55-10-111.

Id. § 55-10-107.

       The trial court did not issue an order outlining its findings of fact and conclusions of
law. However, citing Brotherton and other relevant authorities, the trial court issued a
detailed oral ruling which provided, in pertinent part, as follows:

       The defendant was in his vehicle and was getting ready to leave and the officer
       testified that the defendant backed into a pole there on the road and he went to
       pull him over based on him not failing [sic] to stop based upon that hitting a
       fixture on the road under that statute.

       ....

       [The officer] heard the noise I think is what he said. And I put this in the
       record before that the issue of [credibility] is with this court and this court
       granted [credibility] to that officer’s testimony and what he testified to. . . .
       [Trial counsel] filed that motion [to suppress] and among other things
       submitted a video that shows . . . it didn’t happen. It couldn’t have happened
       based upon the video which is in the record, and that was the question before
       the court.

       ....

       [The officer] had a reasonable suspicion that the . . . pole had been hit and
       based upon that the court denied the defendant’s motion to suppress. . . . [T]he
       court ruled . . . irrespective of what the film showed that you showed [sic] the
       officer said that he observed the vehicle bump into the pole. Secondly, that he
       heard the thud from that and based upon those two things he made the stop.

       ....

       Even if [the officer] was wrong . . . and the state’s not contending that he was
       wrong. They’re contending that the thing really happened. I’m saying it
       doesn’t matter.

        As an initial matter, we agree with the trial court’s assessment of the law applicable
to this case. An officer’s mistake of fact will not likely negate a finding of reasonable

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suspicion, so long as that mistake is objectively reasonable. See, e.g., Illinois v. Rodriguez,
497 U.S. 177, 185-86 (1990) (“It is apparent that in order to satisfy the ‘reasonableness’
requirement of the Fourth Amendment, what is generally demanded of the many factual
determinations that must regularly be made by agents of the government – whether the
magistrate issuing a warrant, the police officer executing a warrant, or the police officer
conducting a search or seizure under one of the exceptions to the warrant requirement – is
not that they always be correct, but that they always be reasonable.”). Indeed, in Tennessee,
“[a] showing of reasonable suspicion does not require an actual violation of law because
‘Terry accepts the risk that officers may stop innocent people’ to investigate further.”
Brotherton, 323 S.W.3d at 871 (quoting Illinois v. Wardlow, 528 U.S. 119, 126 (2000)).
Accordingly, whether the Defendant-Appellant violated sections 55-10-105, -107 is not at
issue. Instead, the question presented is whether it was objectively reasonable for the officer
to have believed that the Defendant-Appellant was involved in a vehicle accident resulting
in damage to the lighting fixture and failed to notify the owner of this fact. Id.; see also
United States v. Hughes, 606 F.3d 311, 320 (6th Cir. 2010); United States v. Chanthasouxat,
342 F.3d 1271, 1276 (11th Cir. 2003) (“A traffic stop based on an officer’s incorrect but
reasonable assessment of facts does not violate the Fourth Amendment.”).

        In this case, the officer provided minimal testimony regarding his observations on the
night of the offense. He conceded that he did not observe the pole or any damage to it prior
to stopping the Defendant-Appellant.4 The sole basis for the stop was a nondescript sound
the officer said he heard when the vehicle struck the pole. Interestingly, there was no sound
accompanying the video from the officer’s vehicle until after he initiated the stop. The
officer agreed that the video from his vehicle recorded the Defendant-Appellant striking the
pole. For the first 24 seconds of the video, the Defendant-Appellant is turning his vehicle
around in a parking lot to face the street and stopping at various points to facilitate the turn.
He pulls forward and reverses the vehicle twice before exiting onto the street. The back of
the Defendant-Appellant’s vehicle is extended beyond the pole, such that the pole appears
closer to and above the right side cargo area of the vehicle. The officer is not shown the
video during his testimony, and we are unable to discern at what point he believed the
Defendant-Appellant struck the pole. As the Defendant-Appellant is maneuvering, the
vehicle does not come into contact with the pole or a nearby concrete enclosure, which
contains hedges and another pole holding a business sign. While the Defendant-Appellant
is turning his vehicle, the pole does not move, the light emanating from the pole onto the
ground does not move, and the vehicle does not jolt or abruptly stop. The Defendant-
Appellant positions his vehicle and proceeds to drive down the street in an uneventful
manner. While the video neither impeaches nor corroborates the officer’s testimony, our



       4
           It is unclear from the record whether the pole referred to is a light, telephone, or utility pole.

                                                      -7-
review does not reveal the Defendant-Appellant striking the pole or any other evidence that
an accident occurred.

        Moreover, the reconstructive video demonstrates that a vehicle must be positioned in
front of the pole in order to strike it. As the vehicle strikes the pole, it clearly sways and
simultaneously makes a noticeable sound when hit. A sign attached to the pole in the
reconstructive video, which was not on the pole on the night of the offense, moves when the
pole is hit. Additionally, in the first reconstruction video, which was filmed at dusk, the light
shining on the ground from the pole moves as the vehicle strikes the pole. Finally, the
vehicles in the reconstructive videos all come to abrupt stops when they hit the utility pole.
Although the degree of force exerted in the demonstration videos compared to that used on
the night of the offense may be arguable, none of these observations are apparent from the
officer’s video recording.

        Upon our review of the record, we conclude that the preponderance of the evidence
presented at the hearing does not support the judgment of the trial court. Accordingly, we
hold that as a matter of law there was no reasonable suspicion to stop the Defendant-
Appellant. The only evidence supporting reasonable suspicion was the sound the officer
heard drawing his attention to the Defendant-Appellant’s vehicle. This sound certainly may
have warranted further observation of the Defendant-Appellant and his vehicle. However,
prior to the stop, the officer admittedly made no efforts to determine whether an accident
occurred or whether there was any damage to the utility pole. The officer also did not
indicate any other articulable facts such as movement of the pole, an abrupt stop by the
vehicle, or suspicious behavior by the Defendant-Appellant. In our view, the officer’s
nondescript audible observation, standing alone, amounts to no more than an “inchoate and
unparticularized suspicion or ‘hunch,’” which is not enough to generate reasonable suspicion
sufficient to justify an investigative stop. Garcia, 123 S.W.3d at 344. Because we cannot
say that it was objectively reasonable for the officer to believe that the Defendant-Appellant
violated sections 55-10-105, -107 when the Defendant-Appellant did not get out of his
vehicle after the officer heard a noise, the stop of the Defendant-Appellant was
unconstitutional. The judgment of the trial court is reversed, and the Defendant-Appellant’s
conviction is vacated.

                                       CONCLUSION

       Based on the above authority and analysis, the judgment of the trial court is
reversed and the conviction in this case is vacated and dismissed.

                                            ___________________________________
                                            CAMILLE R. McMULLEN, JUDGE

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