         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 22, 2004 Session

              STATE OF TENNESSEE v. CHARLES JACKSON, JR

                 Direct Appeal from the Circuit Court for Robertson County
                         No. 03-0130   John H. Gasaway, III, Judge



                  No. M2003-02417-CCA-R3-CD - Filed December 14, 2004


Defendant, Charles Jackson, Jr., entered a plea of guilty to possession of cocaine of over 0.5 grams
with intent to sell, a Class C felony. The trial court imposed the recommended sentence of eight
years as a Range II multiple offender. As a part of the plea agreement, Defendant reserved two
certified questions of law under Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure
arguing that the trial court erred in not suppressing items found during a search of his vehicle. We
affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH , JJ., joined.

Larry B. Felts, Nashville, Tennessee, for the appellant, Charles Jackson, Jr.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                            OPINION

I. Suppression Hearing

        At the hearing on Defendant’s motion to suppress, Officer Terry Plaisance testified that he
was patrolling the portion of Interstate 65 that runs through White House, Tennessee, when he
noticed a car traveling below the speed limit. Officer Plaisance called in the license plate number
of the vehicle and learned that the driver’s license of the registered owner, Antonio Smith, was
suspended. The dispatcher also relayed a physical description of Mr. Smith based on his driver’s
license. The information indicted that Mr. Smith, who was born in 1978, was an African-American
male, with black hair and brown eyes, five feet nine inches tall, and weighing two hundred and two
pounds.
         Officer Plaisance pulled his car into the left lane so that it was next to Defendant’s vehicle.
Officer Plaisance observed that the driver of the vehicle appeared to match Mr. Smith’s description,
and he initiated a stop of Defendant’s vehicle. Officer Plaisance asked Defendant if he was Antonio
Smith, and Defendant replied that his name was Charles Jackson. Officer Plaisance asked for
Defendant’s driver’s license to verify his identity. Defendant handed him a “Tennessee identification
card.” Officer Plaisance said that it was his experience that a driver generally carries an
identification card when his or her driver’s license had been suspended or revoked. He asked
Defendant, “why are you suspended?” Defendant said that his driver’s license had been suspended
“for a ticket that he hadn’t [sic] taken care of in Florida.”

        Officer Plaisance returned to his vehicle to verify the status of Defendant’s driver’s license
and to request a back-up patrol car. After the other officer arrived, Defendant consented to a search
of his person and vehicle which led to the discovery of the drugs upon which Defendant’s conviction
was based.

        On cross-examination, Officer Plaisance conceded that he could not tell what color
Defendant’s eyes were at that time of the night, and that Defendant was thirty-eight years old.
Officer Plaisance said that he estimated Defendant’s weight and height before he got out of the car
“from experience for the most part.”

        Defendant testified that he observed Officer Plaisance pulling up to his vehicle but denied
that the police car drew even with Defendant’s vehicle so that Defendant’s face was visible.
Defendant said that he was six feet, two inches tall, and weighed two hundred and fifty pounds.
Antonio Smith testified that he had brown, not black, hair.

II. Trial Court’s Findings

       Based upon the totality of the circumstances, the trial court found that the investigatory stop
of Defendant’s vehicle was supported by a reasonable suspicion that the vehicle was driven by
Antonio Smith whose driver’s license had been suspended. The trial court continued:

               After stopping the vehicle, the asking of the driver if he were Antonio Smith,
       the asking of the driver for identification when the officer was told by the driver he
       was Charles Jackson, the checking by the officer of the validity of . . . the driver’s
       operator’s license after having been told by the driver that his operator’s license was
       in a suspended status are all actions which are legally justified.

               The officer had a right to do each of those things to act upon the suspicion
       that he developed after he learned the information that he did from the dispatch. So,
       the motion to suppress is accordingly denied.

III. Standard of Review

       The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this Court unless the evidence contained in the record preponderates against them. State v.

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Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The prevailing party is entitled to the strongest legitimate
view of the evidence and all reasonable inferences drawn from that evidence. State v. Hicks, 55
S.W.3d 515, 521 (Tenn. 2001). However, this Court is not bound by the trial court’s conclusions
of law. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). The application of the law to the facts
found by the trial court are questions of law this Court reviews de novo. State v. Daniel, 12 S.W.3d
420, 423 (Tenn. 2000).

IV. Certified Question of Law

       Defendant presents the following two certified questions on appeal:

       1) Whether the arresting officer had probable cause or reasonable suspicion to stop the
vehicle that the defendant was driving, based solely on a radio transmission that the owner of the
vehicle’s license plate had a suspended license; and

        2) Whether the officer had probable cause to ask the defendant about the status of his driver’s
license, after the officer confirmed that the defendant was not the owner of the license plate.

       Because this appeal comes before us as a certified question of law pursuant to Rule 37(b) of
the Tennessee Rules of Criminal Procedure, we must first determine whether the procedural
requirements have been met. Rule 37(b) provides, in part, that:

       An appeal lies from any order or judgment in a criminal proceeding where the law
       provides for such appeal, and from any judgment of conviction . . . upon a plea of
       guilty [if] . . .[the] defendant entered into a plea agreement under Rule 11(e) but
       explicitly reserved with the consent of the State and of the court the right to appeal
       a certified question of law that is dispositive of the case and the following
       requirements are met:

       (A) The judgment of conviction, or other document to which such judgment refers
       that is filed before the notice of appeal, must contain a statement of the certified
       question of law reserved by the defendant for appellate review;
       (B) The question of law must be stated in the judgment or document so as to identify
       clearly the scope and limits of the legal issue reserved;
       (C) The judgment or document must reflect that the certified question was expressly
       reserved with the consent of the State and the trial judge; and
       (D) The judgment or document must reflect that the defendant, the State, and the trial
       judge are of the opinion that the certified question is dispositive of the case . . . .

Tenn. R. Crim. P. 37(b)(2); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The record shows
that all of the procedural requirements of Rule 37 have been met; we must also review whether the
certified questions presented for review are dispositive of the case.



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        A dispositive issue is one where the appellate court “must either affirm the judgment or
reverse and dismiss.” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).
Correspondingly, an issue is not dispositive of the case “when [the appellate court] might reverse
and remand for trial.” Id.. But see State v. Payne, ___ S.W.3d ___, 2004 WL 2453561 (Tenn. 2004)
(Under the particular facts presented in the defendant’s certified question requesting suppression of
his statement to the police, the supreme court affirmed the reversal of the defendant’s convictions,
but reversed the dismissal of the charges and remanded for proceedings consistent with the opinion.)
Although the parties and trial court certified Defendant’s issues as dispositive of the case, an
appellate court is not bound by the trial court’s determination that an issue is dispositive. Preston,
759 S.W.2d at 651. Rather, this Court must make an independent determination of the dispositive
nature of the issue and must deny appellate review if the court determines the issue is not dispositive.
Id.

        Defendant’s first certified question challenges the legality of the initial investigatory stop.
 The State concedes the dispositive nature of Defendant’s first question and agrees that its entire case
is based on the evidence seized during the search conducted during the investigatory stop. Evidence
seized during an illegal traffic stop is subject to suppression. See State v. Norwood, 938 S.W.2d 23,
26 (Tenn. Crim. App. 1996).

        The State challenges for the first time on appeal, however, the dispositive nature of
Defendant’s second certified question. Assuming Officer Plaisance initially had reasonable
suspicion to initiate an investigatory traffic stop, the second question focuses on whether Officer
Plaisance’s continued questioning of Defendant exceeded the permissible scope of a Terry stop. See
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). “A reasonable traffic stop can
become unreasonable and constitutionally invalid ‘if the time, manner or scope of the investigation
exceeds the proper parameters.’” State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (quoting United
States v. Childs, 256 F.3d 559, 564 (7th Cir. 2001)).

        Regardless of Officer Plaisance’s conduct during the stop, the State contends that Defendant
consented to the search which led to the discovery of the incriminating evidence. See State v.
Garcia, 123 S.W.3d 335 (Tenn. 2003); State v. Simpson, 968 S.W.2d 776 (Tenn. 1998). The court
in Garcia observed that “‘a consent to search that is preceded by an illegal seizure is not ‘fruit of the
poisonous tree’ if the consent is both: 1) voluntary, and 2) not an exploitation of the prior illegality.”
Garcia, 123 S.W.3d at 346 (quoting Wayne LaFave, 3 Search and Seizure § 8.2(d) at 656 (3rd ed.
1996)). The Garcia court also observed “that attenuation issues are highly factual.” Id., citing State
v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996). The question of the validity of Defendant’s
consent to search was not litigated in the trial court, and the trial court did not make any findings of
fact as to the nature of Defendant’s consent. Accordingly, we conclude that both of Defendant’s
certified questions, as presented on appeal, are dispositive of the case.




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V. Investigatory Stop

        “It is well-settled that an automobile stop constitutes a seizure within the meaning of both
the Fourth Amendment of the United States Constitution and Article I, section 7 of the Tennessee
Constitution.” State v. Harper, 31 S.W.3d 267, 271 (Tenn. Crim. App. 2000)(citations omitted).
A person is clearly seized when an officer turns on a police car’s blue lights and initiates a stop.
State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000). Because an investigatory stop is not conducted
pursuant to a warrant, it is presumed unreasonable unless the seizure was conducted under one of
the limited exceptions to the warrant requirement. State v. Yeargin, 958 S.W.2d 626, 630 (Tenn.
1997). One exception permits a law officer to conduct a brief investigatory stop if the officer has
a reasonable suspicion based upon specific and articulable facts that a criminal offense has been or
is about to be committed. Terry, 392 U.S. at 21, 88 S. Ct. at 1880. In determining whether an officer
has a reasonable suspicion based upon specific and articulable facts, a court should consider the
totality of the circumstances, including, but not limited to, “the officer’s personal objective
observations, information obtained from other police officers or agencies, information obtained from
citizens, and the pattern of operation of certain offenders.” Yeargin, 958 S.W.2d at 632. In addition,
“[a] court must also consider the rational inferences and deductions that a trained officer may draw
from the facts and circumstances known to him.” Id.

        An investigatory stop “based upon a reasonable suspicion that a driver is unlicensed [is]
constitutionally permissible.” Id. at 631, citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct.
1391, 1401, 59 L. Ed. 2d 660 (1979); see also State v. Watkins, 827 S.W.2d 293 (Tenn. 1993)(An
investigatory stop of a motor vehicle based on the vehicle’s description is permissible when the
police officer knows that the owner of the vehicle has an outstanding capias.); State v. McCulloch,
906 S.W.2d 3 (Tenn. Crim. App. 1995).

         In McCulloch, the police officer spotted the defendant driving his automobile. The officer
thought the defendant was an individual whom the officer had recently arrested for DUI and driving
on a revoked license. The officer radioed for information about the vehicle’s license tag. He
discovered that the vehicle was not registered in the name of the individual he believed was the
driver, and that the tag was not registered to that vehicle. A panel of this court concluded that the
police officer had a reasonable suspicion based on specific and articulable facts to stop the vehicle.
Id. at 4.

        In the case sub judice, Officer Plaisance had information that the driver’s license of the owner
of the vehicle in question was suspended. The dispatcher provided a basic description of the owner,
Antonio Smith. Officer Plaisance observed Defendant as he drove the vehicle and determined that
he generally fit the description provided by the dispatcher. Considering the totality of the
circumstances, we find that Officer Plaisance had the requisite reasonable suspicion based on
specific and articulable facts to initiate an investigatory stop of Defendant’s vehicle.

       Next, we address Defendant’s argument that even if the initial stop was lawful, the duration
and scope of the seizure exceeded permissible limits. Defendant argues that Officer Plaisance


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exceeded the scope of the stop when he asked Defendant for his driver’s license after Defendant told
him he was not Antonio Smith.

        The constitutional parameters of an encounter between a police officer and a motorist was
set forth in State v. Troxell, 78 S.W.3d 866 (Tenn. 2002).

        Because a traffic stop is an investigatory stop, the officer’s actions must be
        “reasonably related in scope to the circumstances which justified the interference in
        the first place,” Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889
        (1968), and the detention “must be temporary and last no longer than necessary to
        effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.
        1319, 1325, 75 L. Ed. 2d 229 (1983); State v. England, 19 S.W.3d at 767-68.
        Moreover, the officer should employ the least intrusive means reasonably available
        to investigate his or her suspicions in a short period of time. Florida v. Royer, 460
        U.S. at 500, 103 S. Ct. at 1326. As this Court has said, “the proper inquiry is whether
        during the detention, the police diligently pursued a means of investigation that was
        likely to confirm or dispel their suspicions quickly.” State v. Simpson, 968 S.W.2d
        at 783 (citation omitted). Otherwise, a reasonable traffic stop can become
        unreasonable and constitutionally invalid “if the time, manner, or scope of the
        investigation exceeds the proper parameters.”

Id. at 871.

        One of the lines of inquiry a police officer may pursue during an investigatory stop involves
verifying the driver’s identity and compliance with licensing requirements. See Prouse, 440 U.S.
at 663, 99 S. Ct. at 1401. “It is well established that an officer may ask a [person] to identify himself
in the course of a Terry stop” based on reasonable suspicion. Hiibel v. Sixth Judicial District of
Nevada, ___ U.S. ___, 124 S. Ct. 2451, 2459, 159 L. Ed. 2d 292 (2004)(citing United State v.
Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985)).

        Returning to the situation examined in McCulloch, after stopping the defendant’s vehicle,
the police officer discovered that the defendant was not the individual he believed was driving the
vehicle. Nonetheless, the officer asked the defendant for his driver’s license and learned that his
license was revoked. The defendant argued that the officer had no authority to ask for his driver’s
license once he determined that the defendant was not who he thought. This Court concluded that
the officer’s actions proper. McCulloch, 906 S.W.2d at 5. The court observed that Tennessee Code
Annotated section requires that “[t]he licensee shall have the licensee’s license in immediate
possession at all times when driving a motor vehicle and shall display it upon demand of any . . .
police officer of the state, county or municipality.” Id. See also State v. Levitt, 75 S.W.3d 159, 176-
77 (Tenn. Crim. App. 2001)(Observing that a motorist’s refusal to show his driver’s license when
requested to do so by a police officer during a permissible motor vehicle stop is sufficient to support
a violation of Tennessee Code Annotated section 55-50-351).



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        Based upon the totality of the circumstances, Officer Plaisance’s request for Defendant’s
driver’s license to verify his identity was reasonable. When Defendant failed to produce a driver’s
license, and this indicated to the officer that Defendant’s license was suspended, Officer Plaisance
had a justifiable reason to continue his inquiry.

       In summary, we find under the facts presented in this case that the stop of Defendant’s
vehicle and Officer Plaisance’s inquiries to verify Defendant’s identity were constitutionally
permissible. Accordingly, the trial court did not err in denying Defendant’s motion to suppress.

                                         CONCLUSION

       After a thorough review, we affirm the judgment of the trial court.


                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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