        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 18, 2012

                  STATE OF TENNESSEE v. ERIC A. MARTIN

                  Appeal from the Circuit Court for Franklin County
                     No. 19470     Thomas W. Graham, Judge


                  No. M2011-02296-CCA-R3-CD - Filed May 24, 2012


A police sergeant stopped a vehicle driven by appellant, Eric A. Martin, for violation of
Tennessee Code Annotated section 55-4-110(b), the statute requiring a vehicle license plate
to be maintained free from foreign materials and in a clearly legible condition. He then
determined that appellant was driving with a revoked driver’s license. A grand jury indicted
appellant for driving on a cancelled, suspended, or revoked license and driving on a
cancelled, suspended or revoked license, seventh offense. Appellant pled guilty to driving
on a revoked license, fifth offense. Pursuant to the plea agreement, the trial court sentenced
appellant to eleven months twenty-nine days and revoked his driver’s license for one year.
The trial court suspended all of the sentence except for twenty days and placed appellant on
probation. As a condition of the plea agreement, appellant attempted to reserve the right to
appeal a certified question of law challenging the constitutionality of Tennessee Code
Annotated section 55-4-110(b). Following our review, we conclude that appellant failed to
certify a question of law that is dispositive of the case. Accordingly, we dismiss the appeal.


               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
A LAN E. G LENN, JJ., joined.

B. Jeffery Harmon, District Public Defender, and Robert G. Morgan, Assistant District Public
Defender, Jasper, Tennessee, for the appellant, Eric A. Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; J. Michael Taylor, District Attorney General; and William B. Copeland, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

        On April 9, 2010, at 11:40 p.m., Randy Wildes, a sergeant in the Dechard Police
Department, observed a red Toyota driven by appellant traveling on Highway 127. Sergeant
Wildes could not read the information on the vehicle’s license plate because it had oil or dirt
on it. He stopped appellant’s car pursuant to Tennessee Code Annotated section 55-4-110(b)
and determined that appellant was driving with a revoked driver’s license.

       Following indictment by the grand jury for driving on a cancelled, suspended, or
revoked license and driving on a cancelled, suspended or revoked license, seventh offense,
appellant entered a guilty plea to the offense of driving on a revoked license, fifth offense.
Appellant attempted to certify a question of law regarding the constitutionality of the statute
that was the basis for his traffic stop.

        The special conditions part of the judgment form and Attachment “A” indicate that
appellant pled guilty pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure,
attempting to reserve as a certified question of law: Whether Tennessee Code Annotated
section 55-4-110(b), regarding the display of vehicle license plates, is unconstitutionally
vague and overbroad in that it fails to establish sufficient guidelines for determining that a
tag is “maintained free from foreign materials and in a condition to be clearly legible” and
permits authorities too much discretion. Tennessee Code Annotated section 55-4-110(b),
provides as follows:

       Every registration plate shall at all times be securely fastened in a horizontal
       position to the vehicle for which it is issued so to prevent the plate from
       swinging and at a height of not less than twelve inches (12) from the ground,
       measuring from the bottom of such plate, in a place and position to be clearly
       visible and shall be maintained free from foreign materials and in a condition
       to be clearly legible. No tinted materials may be placed over a license plate
       even if the information upon the license plate is not concealed.

       Rule 3(b)(2) of the Tennessee Rules of Appellate Procedure permits a defendant to
plead guilty while reserving the right to appeal a certified question of law that is dispositive
of the case. In doing so, a defendant must also comply with the requirements of Rule
37(b)(2)(A) of the Tennessee Rules of Criminal Procedure. Rule 37 outlines the following
requirements:

       (i)    the judgment of conviction or order reserving the certified question that
              is filed before the notice of appeal is filed contains a statement of the



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              certified question of law that the defendant reserved for appellate
              review;

      (ii)    the question of law as stated in the judgment or order reserving the
              certified question identifies clearly the scope and limits of the legal
              issue reserved;

      (iii)   the judgment or order reserving the certified question reflects that the
              certified question was expressly reserved with the consent of the state
              and the trial court; and

      (iv)    the judgment or order reserving the certified question reflects that the
              defendant, the state, and the trial court are of the opinion that the
              certified question is dispositive of the case.

Tenn. R. Crim. App. 37(b)(2)(A)(i)-(iv).

      Our courts have explicitly defined the prerequisites to an appellate court’s
consideration of the merits of a question of law certified pursuant to Rule 37(b)(2):

      Regardless of what has appeared in prior petitions, orders, colloquy in open
      court or otherwise, the final order or judgment from which the time begins to
      run to pursue a [Tennessee Rule of Appellate Procedure] 3 appeal must contain
      a statement of the dispositive certified question of law reserved by defendant
      for appellate review and the question of law must be stated so as to clearly
      identify the scope and the limits of the legal issue reserved. For example,
      where questions of law involve the validity of searches and the admissibility
      of statements and confessions, etc., the reasons relied upon by defendant in the
      trial court at the suppression hearing must be identified in the statement of the
      certified question of law and review by the appellate courts will be limited to
      those passed upon by the trial judge and stated in the certified question, absent
      a constitutional requirement otherwise. Without an explicit statement of the
      certified question, neither the defendant, the State nor the trial judge can make
      a meaningful determination of whether the issue sought to be reviewed is
      dispositive of the case. Most of the reported and unreported cases seeking the
      limited appellate review pursuant to [Tennessee Rule of Criminal Procedure]
      37 have been dismissed because the certified question was not dispositive.
      Also, the order must state that the certified question was expressly reserved as
      part of a plea agreement, that the State and the trial judge consented to the
      reservation and that the State and the trial judge are of the opinion that the

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       question is dispositive of the case. Of course, the burden is on defendant to see
       that these prerequisites are in the final order and that the record brought to the
       appellate courts contains all of the proceedings below that bear upon whether
       the certified question of law is dispositive and the merits of the question
       certified. No issue beyond the scope of the certified question will be
       considered.

State v. Bowery, 189 S.W.3d 240, 245 (Tenn. Crim. App. 2004) (quoting State v. Preston,
759 S.W.2d 647, 650 (Tenn. 1988)). The Preston requirements are mandatory. Bowery, 189
S.W.3d at 245-46 (citing State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996)). Failure
to comply with the requirements results in dismissal of the appeal. Id. (citing Pendergrass,
937 S.W.2d at 837). Our supreme court has made clear that strict compliance with Preston
is required:

       [O]ur prior decisions demonstrate that we have never applied a substantial
       compliance standard to the Preston requirements as urged by the defendant in
       this case. To the contrary, we have described the requirements in Preston for
       appealing a certified question of law under Rule 37 of the Tennessee Rules of
       Criminal Procedure as “explicit and unambiguous.” Moreover, we agree with
       the State that a substantial compliance standard would be very difficult to
       apply in a consistent and uniform manner, and therefore would conflict with
       the very purpose of Preston. We therefore reject the defendant’s argument that
       substantial compliance with the requirements set forth in Preston is all that is
       necessary in order to appeal a certified question of law.

State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003).

        One requirement of a properly certified question is that “‘the defendant, the state, and
the trial court are of the opinion that the certified question of law is dispositive of the case.’”
State v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007) (quoting Tenn. R. Crim. P. 37(b)(2)
(A)(iv)). The question is dispositive “when the appellate court ‘must either affirm the
judgment [of conviction] or reverse and dismiss [the charges].’” Dailey, 235 S.W.3d at 134
(alteration in original) (quoting State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001); State v.
Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984)). An issue is never dispositive when
this court may exercise the option to reverse and remand. Wilkes, 684 S.W.2d at 667. This
court “‘is not bound by the determination and agreement of the trial court, a defendant, and
the State that a certified question of law is dispositive of the case.’” Dailey, 235 S.W.3d at
134-35 (quoting State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003)). The
appellate court must make an independent determination that the certified question is
dispositive. Id. at 135 (citing Preston, 759 S.W.2d at 651). Thus, the issue becomes whether

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“the record on appeal demonstrates how [the certified] question is dispositive of the case.”
Id. (citing Preston, 759 S.W.2d at 651) (emphasis in original).

        Traffic stops constitute seizures, entitling a vehicle’s occupants to the full protections
of the United States and Tennessee Constitutions. Whren v. United States, 517 U.S. 806,
809-10 (1996); State v. Brotherton, 323 S.W.3d 866, 870 (Tenn. 2010); State v. Pulley, 863
S.W.2d 29, 30 (Tenn. 1993). Thus, law enforcement must act reasonably when initiating a
traffic stop. Whren, 517 U.S. at 809-810. In other words, authorities must have at least an
“articulable and reasonable suspicion” to believe that a traffic violation has occurred when
they initiate a traffic stop. Brotherton, 323 S.W.3d at 870 (quoting Whren, 517 U.S. at 810).
“Reasonable suspicion exists when ‘specific and articulable facts . . . taken together with
rational inferences from those facts, reasonably warrant that intrusion.’” Id. (quoting Terry
v. Ohio, 392 U.S. 1, 21 (1968)). “An investigatory traffic stop under Terry ‘is a far more
minimal intrusion [than an arrest pursuant to probable cause], simply allowing the officer to
briefly investigate further. If the officer does not learn facts rising to the level of probable
cause, the individual must be allowed to go on his way.’” Id. (quoting Illinois v. Wardlow,
528 U.S. 119, 126 (2000)).

       Our supreme court has explained that reasonable suspicion is “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). Applying the “reasonable suspicion” standard, our supreme
court has held that it is constitutionally permissible to stop a vehicle for an equipment
violation in Tennessee. State v. England, 19 S.W.3d 762, 766 (Tenn. 2000) (approving this
court’s holding that a violation of the license plate light law, Tennessee Code Annotated
section 55-9-404, created a reasonable suspicion to warrant a traffic stop).

       The record on appeal indicates that Sergeant Wildes executed a traffic stop of
appellant’s vehicle due to an equipment violation. The traffic stop, in and of itself, was
constitutional. After conducting a brief investigation, the officer learned that appellant was
driving on a revoked license. The question that appellant attempted to certify as dispositive
is whether the statute, under the authority of which the officer stopped appellant, is
constitutional.

        We do not find the certified question presented to this court to be dispositive of the
case at trial. Appellant challenges the constitutionality of the statute, Tennessee Code
Annotated section 55-4-110(b), as being vague and overbroad. Because, as noted above,
traffic stops are constitutionally equivalent to seizures, it is logical to extend by analogy our
supreme court’s holding in State v. Huddleston, 924 S.W.2d 666, 673 (Tenn. 1996). In
Huddleston, the Tennessee Supreme Court emphasized that the United States Supreme Court
refuses to apply the exclusionary rule to arrests or searches made in good faith reliance on

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a facially valid statute. Id. (internal citations omitted). We adhere to the binding precedent
of the United States Supreme Court and our supreme court. In this case, Sergeant Wildes
made a traffic stop based on a facially valid statute.

        Moreover, while this court has not specifically addressed the constitutionality of
Tennessee Code Annotated section 55-4-110(b), the United States Court of Appeals for the
Sixth Circuit and the Tennessee Court of Appeals have considered the propriety of stops
made pursuant to the statute. See Weaver v. Shadoan, 340 F. 3d. 398, 407-08 (6 th Cir. 2003)
(officer had reasonable suspicion to stop appellant and was justified in conducting ordinary
traffic stop; officer believed that appellant’s registration was either invalid or improperly
displayed behind tinted windows) (internal citations omitted); J.R. Boling v. City of Pigeon
Forge, No. E2007-01652-COA-R10-CIV, 2008 WL 4366119, at *7 (Tenn. Ct. App. Sept.
22, 2008) (initial stop pursuant to Tennessee Code Annotated section 55-4-110(b) was
“legally proper” when appellant’s temporary license tag was obscured by tinted windows,
notwithstanding the fact that the tag was valid). Indeed, both the Tennessee state courts and
the United States Court of Appeals for the Sixth Circuit have approved of traffic stops made
pursuant to section 55-4-110(b) of Tennessee Code Annotated. The statute is facially valid.
We need not reach the question of whether the statute at issue is unconstitutionally vague or
overbroad because it is not dispositive of the case. Because the question is not dispositive,
it is not a properly certified question of law.

       For the foregoing reasons, we dismiss the appeal.

                                                   ____________________________
                                                   ROGER A. PAGE, JUDGE




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