        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              September 1, 2015 Session

                   STATE OF TENNESSEE v. A.D. SMITH III

                 Appeal from the Criminal Court for Shelby County
                     No. 1301710    Glenn Ivy Wright, Judge




             No. W2015-00133-CCA-R9-CD - Filed December 15, 2015
                        _____________________________

Defendant, A.D. Smith III, was arrested for driving under the influence (“DUI”) in
Shelby County. Based on his prior conviction for DUI, Defendant was informed that he
was subject to a mandatory blood draw under Tennessee‟s implied consent law.
Defendant filed a motion to suppress, arguing that his consent was not freely and
voluntarily given. The trial court granted the motion to suppress, and the State filed for
an interlocutory appeal. Upon our review of the record, arguments, and authorities, we
conclude that the trial court erred in finding that Defendant‟s consent was not voluntary.
Therefore, we reverse the decision of the trial court and remand the case for further
proceedings in accordance with this opinion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Reversed
                                  and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROGER A. PAGE, J.,
joined. JOHN EVERETT WILLIAMS, J., filed a separate dissenting opinion.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Stephanie Johnson, Assistant District
Attorney General, for the appellant, State of Tennessee.

André C. Wharton, Memphis, Tennessee, for the appellee, A.D. Smith III.


                                       OPINION

      This is the State‟s interlocutory appeal from the Criminal Court of Shelby
County‟s granting Defendant‟s motion to suppress the results of blood evidence obtained
without a search warrant during Defendant‟s DUI arrest.
                          Factual and Procedural Background

       Defendant was indicted by the Shelby County Grand Jury of one count of DUI,
one count of DUI per se, and one count of reckless driving. On August 30, 2013,
Defendant filed a motion to suppress. At the subsequent hearing on the motion, the
following facts were adduced:

       Officer Marcus Everett of the Memphis Police Department testified that around
three o‟clock in the morning on August 2, 2012, he saw Defendant‟s vehicle stopped in
the right lane near the intersection of Winchester and Riverdale. Defendant‟s car was
approximately two car lengths away from the intersection. The light turned green, and
Defendant‟s vehicle did not move. It appeared to Officer Everett that Defendant was
asleep at the wheel. Officer Everett pulled in behind Defendant‟s vehicle and approached
to see if everything was alright. Defendant‟s vehicle was in drive, so Officer Everett
reached in through the open window and put the car in park. At that point, Defendant
woke up. Defendant‟s speech was very slurred and he had a strong odor of intoxicants
coming from his person. Officer Everett asked Defendant to step out of the vehicle.
Defendant was unsteady, stumbling, “barely able to keep his balance.” Officer Everett
placed Defendant into custody under suspicion of DUI.

       Officer Everett then called for a “whiskey unit,” a DUI officer, to come to the
scene. Officer Everett also determined that Defendant had a prior conviction for DUI.
Officer Everett transported Defendant to the police station for a mandatory blood draw.
Officer Everett described Defendant‟s demeanor during the trip as calm. At the police
station, Officer Everett removed the handcuffs from behind Defendant‟s back and
handcuffed one of his arms to a chair. Officer Everett filled out part of the implied
consent form with Defendant‟s information but did not go over the form with Defendant.
Officer Everett described Defendant as willing to submit to the blood test, explaining that
he never refused or withdrew consent to the test.

       Officer Marvin Richardson was assigned to the DUI unit and responded to the
scene on August 2, 2012. Officer Everett already had Defendant under arrest for DUI.
Officer Richardson observed that Defendant had bloodshot, watery eyes and an odor of
intoxicants. Based on Defendant‟s prior conviction for DUI, Officer Richardson
determined that the law at that time permitted the Defendant to be subject to a mandatory
blood draw. He explained that this meant the Defendant‟s blood would be taken even if
he refused the test.

      Officer Richardson went to the police station to conduct the blood test. Officer
Richardson read the implied consent form to Defendant and advised him that the blood
draw was mandatory because of his prior conviction for DUI. Officer Richardson asked
                                           -2-
if Defendant wanted to consent to the test, and Defendant “decided to consent to a blood
test.” Officer Richardson described Defendant as calm and cooperative, stating that he
“readily gave up the blood.” A nurse came to the police station to draw Defendant‟s
blood approximately an hour and fifteen minutes after Defendant‟s arrest.

       Officer Richardson explained that if Defendant had refused the blood test, he
would have been charged with a violation of the implied consent law and his blood would
have been taken anyway pursuant to the statute at the time. On cross-examination,
Officer Richardson explained that the law has since changed and that he would now
obtain a search warrant in the case of a refusal. Officer Richardson explained that
Defendant had a right to refuse the test and that he gave Defendant that option. The
implied consent form outlines the consequences of refusing to submit to the test. Officer
Richardson checked the box on the implied consent form indicating a mandatory blood
draw, but he forgot to check the box indicating either Defendant‟s consent or refusal.
Officer Richardson explained this oversight as “clerical error.” Officer Richardson did
not have Defendant sign the form because the implied consent form used at that time did
not have a signature block.

        Defendant testified that when Officer Everett ran his information, he determined
that the Defendant had outstanding warrants. Defendant tried to explain that the warrants
were actually for his brother. According to Defendant, Officer Everett told him, “Well,
warrants or DUI you‟re going down for something,” and told him to “shut up.” Officer
Everett then turned up the radio; it was playing Gospel music. Defendant was not offered
any field sobriety tests.

       Defendant testified that when Officer Richardson arrived at the scene, he did not
say anything about Defendant being subjected to a mandatory blood draw. At the police
station, Defendant testified that Officer Richardson did not go over the implied consent
form with him or explain that he could refuse the test. Defendant testified that he felt like
he did not have any options. According to Defendant, he tried to explain himself, but he
was yelled at and told to shut up. Defendant testified that he never told the officers that
they could take his blood.

        On cross-examination, Defendant testified that while at the intersection, he just
“clos[ed] his eyes for a second,” and the next thing he remembered was the officer
reaching in to put his vehicle in park. Defendant testified that Officer Everett yelled at
him and told him to shut up while at the scene, but neither officer yelled at him or
threatened him when they got to the police station. Defendant testified that he was told
he was under arrest for DUI and that his blood would be taken, but that no one read the
implied consent form to him. Defendant did not say anything to either officer or attempt
to resist when the nurse drew his blood. Defendant testified that the officers did not say
that if he refused consent, they would take his blood anyway.
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        After the hearing, the trial court issued a written order on December 1, 2014,
granting Defendant‟s motion to suppress. The trial court rejected Defendant‟s contention
that the mandatory blood draw provisions are unconstitutional, citing State v. Charles A.
Kennedy for the proposition that the legislature did not intend to dispense with the
warrant requirement. See No. M2013-02207-CCA-R9-CD, 2014 WL 4953586, at *12
(Tenn. Crim. App. Oct. 3, 2014), no perm. app. filed. The trial court found that
Defendant‟s consent to the blood draw was not freely and voluntarily given under the
totality of the circumstances and that the State could not rely on the implied consent
statute to establish voluntary consent. The State filed an application for permission for an
interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure,
which was granted by the trial court on January 13, 2015, and by this Court on April 10,
2015.

                                           Analysis

        In reviewing a trial court‟s ruling on a motion to suppress, this Court will uphold
the trial court‟s findings of fact “unless the evidence preponderates otherwise.” State v.
Bell, 429 S.W.3d 524, 528 (Tenn. 2014) (citing State v. Climer, 400 S.W.3d 537, 556
(Tenn. 2013)). Witness credibility, the weight and value of the proof, and the resolution
of conflicts in the proof “are matters entrusted to the trial court as the trier of fact.” Id. at
529; State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party “is entitled to
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.” Bell,
429 S.W.3d at 529. “However, while deference is due the trial court with respect to
findings of fact, the application of the law to the facts is a question of law that appellate
courts review de novo with no presumption of correctness.” Id.

       Both the Fourth Amendment to the United States Constitution and Article I,
section 7 of the Tennessee Constitution guarantee the right to be free from unreasonable
searches and seizures. Tennessee‟s constitutional protections regarding searches and
seizures are identical in intent and purpose to those in the federal constitution. State v.
Turner, 297 S.W.3d 155, 165 (Tenn. 2009). A blood draw conducted at the behest of a
law enforcement officer for law enforcement purposes is a search subject to constitutional
protection. Missouri v. McNeely, -- U.S. --, 133 S.Ct. 1552, 1558 (2013); Schmerber v.
California, 384 U.S. 757, 770 (1966); State v. Scarborough, 201 S.W.3d 607, 616 (Tenn.
2006).

      In evaluating the constitutionality of warrantless searches, this Court must
“evaluate the search or seizure under traditional standards of reasonableness” by


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balancing an individual‟s privacy interests against legitimate governmental interests.1
Wyoming v. Houghton, 526 U.S. 295, 300 (1999). “[A] warrantless search or seizure is
presumed unreasonable, and evidence discovered as a result thereof is subject to
suppression unless the State demonstrates that the search or seizure was conducted
pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v.
Yeargan, 958 S.W.2d 626, 630 (Tenn. 1997). Some of these recognized exceptions
include search incident to arrest, plain view, search under exigent circumstances, and
consent to search. State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (citing State v. Cox,
171 S.W.3d 174, 179 (Tenn. 2005)). The State has the burden to demonstrate, by a
preponderance of the evidence, that a warrantless search passes constitutional muster.
State v. Harris, 280 S.W.3d 832, 839 (Tenn. Crim. App. 2008).

        The issue in this case is whether Defendant consented to having his blood drawn,
either through actual consent or under the implied consent statute. See T.C.A. § 55-10-
406. As stated above, consent is a recognized exception to the warrant requirement.
Florida v. Bostick, 501 U.S. 429, 438 (1991); Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973); Talley, 307 S.W.3d at 729. To be valid, consent “must be „unequivocal,
specific, intelligently given, and uncontaminated by duress or coercion.‟” State v.
Ingram, 331 S.W.3d 746, 760 (Tenn. 2011) (quoting State v. Berrios, 235 S.W.3d 99, 104
(Tenn. 2007)). The individual‟s will cannot have been overborne; instead the consent
must be the product of a free and unconstrained choice. Cox, 171 S.W.3d at 185.
“Whether an individual voluntarily consents to a search is a question of fact to be
determined from the totality of the circumstances.” Berrios, 235 S.W.3d at 109;
Scarborough, 201 S.W.3d at 623. Factors relevant to evaluating the voluntariness of a
suspect‟s consent include the suspect‟s awareness of his right to refuse consent; his age,
education, and intelligence; and whether he was injured or intoxicated. See State v.
Waylon D. Knott, No. M2000-02524-CCA-R3-CD, 2001 WL 846031, at *3 (Tenn. Crim.
App. July 27, 2001) (citing State v. Carter, 16 S.W.3d 762, 769 (Tenn. 2000)); United
States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998)), no perm. app. filed. “The burden is on
the prosecution to prove that the consent was given freely and voluntarily.” State v.
Blackwood, 713 S.W.2d 677, 680 (Tenn. Crim. App. 1986).

       The statutorily created implied consent satisfies the consent exception to the
Fourth Amendment‟s warrant requirement. See State v. Humphreys, 70 S.W.3d 752, 761
(Tenn. Crim. App. 2001); State v. Corrin Kathleen Reynolds, No. E2013-02309-CCA-
R9-CD, 2014 WL 5840567, at *11 (Tenn. Crim. App. Nov. 12, 2014), perm. app.
granted (Tenn. Mar. 16, 2015). Under Tennessee law, anyone who exercises the
privilege of operating a motor vehicle on the public roadways “is deemed to have given

        1
         We note that the State has a legitimate, substantial, and compelling interest in preventing drunk
driving. See State v. James Dean Wells, No. M2013-01145-CCA-R9-CD, 2014 WL 4977356, at *13
(Tenn. Crim. App. Oct. 6, 2014), no perm. app. filed.
                                                   -5-
consent to a test or tests for the purpose of determining the alcoholic content of that
person‟s blood.” T.C.A. § 55-10-406(a)(1) (2012)2; see Humphreys, 70 S.W.3d at 761
(reasoning that “anyone who exercises the privilege of operating a motor vehicle in this
state has consented in advance to submit to a breath [or blood] alcohol test”). The statute
further provides that a driver may generally refuse consent to a blood alcohol test and be
subject to a violation of the implied consent law. T.C.A. § 55-10-406(a)(4)(A) (2012).
However, the statute also delineates certain exceptions to the statutory right to refuse
consent, including when an officer has probable cause to believe that the driver was
driving under the influence and had previously been convicted of DUI. See T.C.A. § 55-
10-406(f)(2) (2012) (stating that “the officer shall cause the driver to be tested for the
purpose of determining the alcohol or drug content of the driver‟s blood” and that the test
“shall be performed regardless of whether the driver does or does not consent to the
test”). As this Court has explained, “if probable cause exists to believe that (1) the
suspect motorist has consumed intoxicating liquor and (2) evidence of the motorist‟s
intoxication will be found if the blood is tested, it is unnecessary for law enforcement
officers to obtain the voluntary consent of an individual motorist before administering a
breath [or blood] test for alcohol concentration level.” Humphreys, 70 S.W.3d at 761
(internal citations omitted).

       Recently, this Court has held that “consent occurs at the point that a driver
undertakes the privilege of operating a motor vehicle in the State of Tennessee, not at the
point the implied consent form is read.” State v. Darryl Alan Walker, No. E2013-01914-
CCA-R3-CD, 2014 WL 3888250, at *6 (Tenn. Crim. App. Aug. 8, 2014), no perm. app.
filed; see also Humphreys, 70 S.W.3d at 752 (holding that “voluntary consent is
unnecessary as consent has already been obtained by the act of driving the motor vehicle
upon the public roads of this state”); but see James Dean Wells, 2014 WL 4977356, at
*13 (holding that when a driver refuses consent, “the privilege of driving does not alone
create consent for a forcible blood draw”). “Generally, once consent has been given, it is
effective until it is withdrawn or revoked.” Corrin Kathleen Reynolds, 2014 WL
5840567, at *11 (citing Cox, 171 S.W.3d at 186 n.11; State v. Eddie Leroy Rowlett, No.
M2011-00485-CCA-R3-CD, 2013 WL 749502, at *13 (Tenn. Crim. App. Feb. 26, 2013),
no perm. app. filed).

      Additionally, this Court has recently held that a defendant‟s consent is not
“rendered involuntary by the threat of a mandatory blood draw.” State v. Patrick Lee
Mitchell, No. M2014-01129-CCA-R3-CD, 2015 WL 2453095, at *4 (Tenn. Crim. App.
May 22, 2015) (concluding that informing a defendant that he would be subjected to a
mandatory blood draw is not a “baseless threat,” even if the officer would have to obtain
a warrant if the driver refused), no perm. app. filed. Other jurisdictions have similarly

       2
        The implied consent statute has since been amended and some of the subsections have been
renumbered. For clarity, we shall refer to the statute as it existed at the time of Defendant‟s arrest.
                                                     -6-
held that advising a driver of the consequences of refusing a chemical test under the
implied consent law does not render the subsequent consent involuntary. In People v.
Harris, the California Court of Appeals has held “that free and voluntary submission to a
blood test, after receiving an advisement under the implied consent law, constitutes actual
consent to a blood draw under the Fourth Amendment.” 184 Cal. Rptr. 3d 198, 209 (Ct.
App. 2015), review denied (June 10, 2015). “The fact that a motorist is told he will face
serious consequences if he refuses to submit to a blood test does not, in itself, mean that
his submission was coerced.” Id. at 211 (citing South Dakota v. Neville, 459 U.S. 553
(1983)).3 In State v. Moore, the Oregon Supreme Court reasoned as follows:

        [I]t is difficult to see why the disclosure of accurate information about a
        particular penalty that may be imposed—if it is permissible for the state to
        impose that penalty—could be unconstitutionally coercive.            Rather,
        advising a defendant of the lawful consequences that may flow from his or
        her decision to engage in a certain behavior ensures that that defendant
        makes an informed choice whether to engage in that behavior or not.
        Indeed, the failure to disclose accurate information regarding the potential
        legal consequences of certain behavior would seem to be a more logical
        basis for a defendant to assert that his or her decision to engage in that
        behavior was coerced and involuntary. Of course, accurately advising a
        defendant of a lawful penalty that could be imposed may well play a role in
        the defendant‟s decision to engage in the particular behavior, but that does
        not mean that the defendant‟s decision was “involuntary.”

318 P.3d 1133, 1138 (Or. 2013). In State v. Brooks, the Minnesota Supreme Court
concluded that “a driver‟s decision to agree to take a [chemical] test is not coerced”
solely because that state‟s implied consent law imposes criminal penalties for refusing to
comply. 838 N.W.2d 563, 570 (Minn. 2013); see also State v. Padley, 849 N.W.2d 867,
879 (Wis. Ct. App. May 22, 2014) (noting that, under the implied consent law, a driver
may choose to give a blood sample and thereby give actual consent or may choose to
withdraw consent, which is an unlawful act penalized by license revocation).

       Defendant argues that the United States Supreme Court decision in Missouri v.
McNeely invalidates the use of implied consent statutes to justify a warrantless blood
draw. See 133 S. Ct. at 1561 (“In those drunk-driving investigations where police
officers can reasonably obtain a warrant before a blood sample can be drawn without
significantly undermining the efficacy of the search, the Fourth Amendment mandates

        3
           In Neville, the United State Supreme Court examined an implied consent statute—including the
fact that refusal of consent could be used against the defendant at trial—under the Fifth Amendment
protection against self-incrimination. 459 U.S. at 554. The Court concluded that although “the choice to
submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to make,” the
difficulty of the decision does not mean that the motorist‟s ultimate choice is coerced. Id. at 564.
                                                     -7-
that they do so.”). However, the McNeely Court specifically limited its ruling to an
analysis of the exigent circumstances exception to the warrant requirement and whether
the natural dissipation of alcohol in the bloodstream creates a per se exigency. Id. at
1568 (“Because this case was argued on the broad proposition that drunk-driving cases
present a per se exigency, the arguments and the record do not provide the Court with an
adequate analytic framework for a detailed discussion of all the relevant factors that can
be taken into account in determining the reasonableness of acting without a warrant.”).
Additionally, the plurality opinion in McNeely identified implied consent statutes
favorably as one of a “broad range of legal tools” that States have “to enforce their drunk-
driving laws and to secure [blood alcohol content] evidence without undertaking
warrantless nonconsensual blood draws.” Id. at 1566 (Sotomayor, J., plur. op.).4 Thus,
McNeely indicates that implied consent withstands Fourth Amendment scrutiny, at least
so long as the driver does not withdraw or revoke consent. But see Aviles v. State, 443
S.W.3d 291, 294 (Tex. App. Aug. 6, 2014) (concluding that “the [implied consent]
statutes were not substitutes for a warrant or legal exceptions to the Fourth Amendment
warrant requirement” in light of the McNeely decision).

       In this case, the evidence preponderates against the trial court‟s finding that
Defendant did not voluntarily consent to the blood draw under the totality of the
circumstances. Officer Richardson testified that he informed Defendant that he was
subject to a mandatory blood draw because of his prior DUI conviction. Officer
Richardson testified that he read Defendant the implied consent form and “asked him if
[he] wanted to consent to a chemical test.” According to Officer Richardson, Defendant
“decided to consent to a blood test” and cooperated with the blood draw. Officer Everett
described Defendant as calm and willing to submit to the blood test. Based on
Defendant‟s prior conviction for DUI, it cannot be said that he was unfamiliar with the
legal system and the implied consent law. Defendant agreed that he submitted to the
blood draw without protest; however, he testified that he thought he had no other option,
claiming that Officer Richardson never read him the implied consent form.

       The trial court accredited the testimony of Officer Richardson that he read the
implied consent form to Defendant, thereby informing Defendant of his right to refuse
consent and the consequences of a refusal. However, the trial court based its conclusion
that Defendant did not voluntarily consent to the blood draw on the fact that Officer
Richardson told the Defendant that the blood draw was mandatory, “giving the
impression to Defendant that [he] had no choice but to submit to the testing.” However,
as stated above, a defendant‟s consent is not “rendered involuntary by the threat of a

        4
          In his concurring opinion, Justice Kennedy explained that he did not join this portion of the lead
opinion because “the instant case, by reason of the way in which it was presented and decided in the state
courts, does not provide a framework where it is prudent to hold any more than that always dispensing
with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is
inconsistent with the Fourth Amendment.” McNeely, 133 S.Ct. at 1569 (Kennedy, J., concurring in part).
                                                   -8-
mandatory blood draw” or the loss of driving privileges. Patrick Lee Mitchell, 2015 WL
2453095, at *4. Additionally, we do not find Defendant‟s testimony that he was “yelled
at” and “subjected to loud Gospel music” when he tried to “explain himself” with regard
to outstanding warrants, all of which supposedly occurred before Officer Richardson ever
arrived on the scene, amounts to evidence of coercion or intimidation. See id. (finding
that the defendant‟s testimony that he felt “pressured” and “nervous” did not amount to
showing that his consent was coerced). Therefore, we conclude in this case that the trial
court erred in finding that Defendant‟s consent was not voluntary under the totality of the
circumstances.

        This case is easily distinguishable from cases involving forcible, non-consensual
blood draws. See State v. James K. Gardner, No. E2014-00310-CCA-R3-CD, 2014 WL
5840551, at *5 (Tenn. Crim. App. Nov. 12, 2014), no perm. app. filed5; James Dean
Wells, 2014 WL 4977356, at *1; Charles A. Kennedy, 2014 WL 4953586, at *2. In each
of those cases, the defendant clearly revoked or withdrew his consent when he refused
the blood draw. This case is more analogous with Patrick Lee Mitchell, 2015 WL
2453095, at *4, Corrin Kathleen Reynolds, 2014 WL 5840567, at *11, and Darryl Alan
Walker, 2014 WL 3888250, at *6. In each of those cases, the warrantless blood draw was
held to be constitutional because the defendant never expressly withdrew or revoked
consent. In Darryl Alan Walker, this Court concluded that because there was no evidence
that the defendant refused to submit to the test, that his “implied consent remained valid,
and his contention that his consent was involuntary [was] without merit.” 2014 WL
3888250, at *6. In Corrin Kathleen Reynolds, this Court concluded that even though the
defendant was not able to give actual consent due to the medications she had been given
at the hospital, she never revoked or withdrew her implied consent. 2014 WL 5840567,
at *9-11; but see State v. Micah Alexander Cates, No. E2014-01322-CCA-R3-CD, 2015
WL 5679825, at *8 (Tenn. Crim. App. Sept. 28, 2015) (declining to address the State‟s
argument that the defendant never withdrew his implied consent as being raised for the
first time on appeal). In this case, because Defendant actually consented to the blood
draw and never expressly revoked his implied consent, Officer Richardson was
authorized by the implied consent statute to take Defendant‟s blood without a warrant.


        5
           We note that in James K. Gardner, the trial court found that, despite being read the implied
consent form and informed of the right to refuse consent, the defendant‟s consent was not voluntary
because he “didn‟t have much of a choice” in light of the mandatory blood draw. 2014 WL 5840551, at
*5. However, the certified question presented on appeal was “[w]hether exigent circumstances existed
which justified an exception to the Fourth Amendment‟s search warrant requirement for the
nonconsensual blood testing of the defendant?” Id. (emphasis added). Therefore, this Court did not have
jurisdiction to consider whether the mandatory nature of the blood draw actually rendered the defendant‟s
consent involuntary. See State v. Day, 263 S.W.3d 891, 899 (Tenn. 2008) (quoting State v. Preston, 759
S.W.2d 647, 650 (Tenn. 1988)) (noting that the “question of law must be stated so as to clearly identify
the scope and the limits of the legal issue reserved . . . [and] [n]o issue beyond the scope of the certified
question will be considered.”) (alteration and emphasis added in Day).
                                                    -9-
                                   Conclusion

      Based on the foregoing, we reverse the decision of the trial court granting
Defendant‟s motion to suppress. We remand this case for further proceedings in
accordance with this opinion.




                                               _________________________________
                                               TIMOTHY L. EASTER, JUDGE




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