        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 14, 2013

                STATE OF TENNESSEE v. JODY KYLE BANKS

                 Appeal from the Circuit Court for Van Buren County
                     No. 2302M      Larry B. Stanley, Jr., Judge


               No. M2012-02722-CCA-R3-CD - Filed December 18, 2013


The defendant, Jody Kyle Banks, pled guilty to driving under the influence of an intoxicant
(second offense), a Class A misdemeanor, in violation of Tennessee Code Annotated section
55-10-401(a)(1) (2010). He was sentenced to eleven months and twenty-nine days
imprisonment, with fifty days to be served in jail and the remainder of the sentence to be
served on probation. In entering his guilty plea, the defendant reserved, pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2), a certified question of law challenging the
initial stop of his vehicle based on a broken taillight. After a thorough review of the record,
we conclude that this case is governed by the Tennessee Supreme Court’s decision in State
v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), and we accordingly affirm the judgment of the
trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and C AMILLE R. M CM ULLEN, JJ., joined.

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Jody Kyle Banks.

Robert E. Cooper, Jr., Attorney General & Reporter; Clark B. Thornton, Senior Counsel;
Lisa Zavogiannis, District Attorney General; and Darrell R. Julian, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION


                     FACTUAL AND PROCEDURAL HISTORY
       This case stems from a traffic stop initiated based on a broken taillight. Although a
transcript of the hearing on the motion to suppress is not included in the record, the defendant
includes a statement of evidence recounting certain stipulated facts presented to the trial
court at that hearing. The defendant was driving a maroon Nissan Maxima down Highway
111 at around 9:13 p.m. on July 16, 2011 when Officer Michael Brock activated his
emergency lights and stopped the defendant’s vehicle. Officer Brock’s sole reason for
stopping the defendant was that the defendant’s right taillight or brake light had a partially
broken red lens.1 Although the actual bulb was covered by the intact portions of the lens,
white light nevertheless emanated from the broken taillight assembly. Officer Brock did not
have a warrant or other cause to stop the vehicle.

       According to the affidavit of complaint, after stopping the vehicle, Officer Brock
noticed the odor of beer and the defendant admitted to having consumed a “Rockstar.” After
the defendant performed unsatisfactorily on field sobriety tests, he was arrested, and a
Breathalyzer test showed that the alcohol concentration in his breath was above the legal
limit.

        The defendant was indicted for driving under the influence of an intoxicant in
violation of Tennessee Code Annotated section 55-10-401(a)(1) and for driving with a blood
or breath alcohol concentration of 0.08 percent or greater in violation of Tennessee Code
Annotated section 55-10-401(a)(2). The defendant had a previous conviction under this
statute in 2006.

       The defendant moved to suppress all evidence that resulted from the initial stop of the
vehicle. The trial court concluded that Officer Brock had reasonable suspicion to stop the
defendant’s vehicle in order to examine its tail or brake light, and the court denied the
motion.

       The defendant ultimately pled guilty to count one and count two was dismissed. In
entering his guilty plea, the defendant reserved the following certified question of law:

               Whether the stop of the Nissan Maxima operated by the
               Defendant on July 16, 2011 by Officer Michael Brock of the
               Town of Spencer Police Department on Highway 111 South in
               Spencer, Van Buren County, Tennessee at or near 9:13 o’clock
               p.m., and the subsequent observations, search and seizure of the
               Defendant by Officer Brock, were in violation of the Fourth


       1
        The stipulated facts state that approximately three-fourths of the light was unbroken, although
photographs included on appeal appear to show that the intact portion was less than three-fourths.

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       Amendment to the Constitution of the United States and/or
       Section 7, Article I of the Constitution of the State of Tennessee,
       in that (1) the stop of the Defendant’s vehicle was made without
       an arrest warrant or other process, (2) the stop of the vehicle was
       based upon a partially broken lens[] on the right tail light/brake
       light unit that permitted clearly visible white light to emanate
       from the damaged area no longer shielded by the missing
       portion of the lens but permitted the remaining section of the
       lens assembly to be unaffected, and (3) when there were no
       other exigent circumstances or grounds supporting the stop of
       the vehicle. In the event the stop violated these Constitutional
       provisions, all evidence secured by the Officer and his
       observations would be suppressed and inadmissible.

                                 ANALYSIS

Under Tennessee Rule of Criminal Procedure 37, an appeal lies from a guilty plea if:

       A) the defendant entered into a plea agreement under Rule 11(c)
       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:

              (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 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

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                        of the case.

Tenn. R. Crim. P. 37(b)(2). The defendant entered a guilty plea under Rule 11.2 The
defendant explicitly reserved the right to appeal a dispositive question of law, and the State
and the trial court both consented. The judgment incorporates by reference the certified
question appended to the judgment sheet; the question clearly identified the scope and limits
of the legal issue; the addendum reflects that the question was expressly reserved and that
the State and trial court consented; and the judgment reflects that the State, the defendant,
and the trial court all agreed that the question was dispositive of the case. A question is
dispositive when the appellate court is left with only two choices: affirming the judgment or
dismissing the charges. State v. Robinson, 328 S.W.3d 513, 518 n.2 (Tenn. Crim. App.
2010). The reviewing court is not bound by the agreement that a question is dispositive but
must make an independent determination regarding whether the question is dispositive. State
v. Dailey, 235 S.W.3d 131, 134-35 (Tenn. 2007). In the case at bar, all evidence supporting
the conviction stems from the initial stop of the defendant’s vehicle. Accordingly, we
conclude that the requirements of Tennessee Rule of Criminal Procedure 37(b)(2) have been
met and we review the question presented.

        In reviewing a trial court’s judgment in a motion to suppress, “[q]uestions of
credibility of the witnesses, 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.” State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party is entitled to the strongest legitimate
view of the evidence introduced at the hearing and to all reasonable and legitimate inferences
to be drawn from that evidence. State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010). A trial
court’s findings of fact are upheld on appeal unless the evidence preponderates against them.
State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000). However, the application of law to the
facts is reviewed de novo with no presumption of correctness, and determining whether
reasonable suspicion existed to uphold a traffic stop is a mixed question of fact and law.
State v. Garcia, 123 S.W.3d 335, 342-43 (Tenn. 2003).

       The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution prohibit unreasonable searches and seizures. The activation of
a police car’s emergency lights to stop a vehicle constitutes a seizure. State v. Pulley, 863
S.W.2d 29, 30 (Tenn. 1993). A warrantless search is presumed unreasonable unless
conducted under one of the narrowly defined exceptions to the requirement. State v. Binette,
33 S.W.3d 215, 218 (Tenn. 2000). One such exception is a stop based on either probable
cause or reasonable suspicion that a traffic violation has occurred. State v. Watson, 354


        2
         Although the addendum to the judgment recites that the plea was under subsection (e) of Rule 11,
this subsection merely requires written records evidencing the plea.

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S.W.3d 324, 329 (Tenn. Crim. App. 2011) (citing Whren v. United States, 517 U.S. 806, 810
(1996)). The determination of probable cause is a determination of “whether at that moment
the facts and circumstances within [the officers’] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing that
the [defendant] had committed or was committing an offense.” State v. Day, 263 S.W.3d 891,
902 (Tenn. 2008) (quoting Goines v. State, 572 S.W.2d 644, 647 (Tenn. 1978)).

       Facts which do not rise to probable cause to make an arrest may nevertheless
constitute reasonable suspicion to conduct an investigatory stop. Pulley, 863 S.W.2d at 31
(noting reasonable suspicion a “lower quantum of proof” than probable cause). Reasonable
suspicion is more than an “inchoate and unparticularized suspicion or ‘hunch,’”; instead, it
must be supported by “specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Day, 263 S.W.3d at 902-03
(quoting Terry v. Ohio, 392 U.S. 1, 27, 21 (1968)). In determining the presence of
reasonable suspicion, the court must consider the totality of the circumstances, including but
not limited to: objective observation; information obtained from other officers or agencies;
information obtained from citizens; and the pattern of operation of certain offenders. State
v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). The court should also consider the rational
inferences and deductions that a trained police officer may draw from the facts and
circumstances known to him or her. Id.

       Tennessee Code Annotated section 55-9-402 provides:

              (b)(1) Every motor vehicle shall be equipped with two (2) red
              tail lamps and two (2) red stoplights on the rear of the vehicle …

              (2) The stoplight shall be so arranged as to be actuated by the
              application of the service or foot brake and shall be capable of
              being seen and distinguished from a distance of one hundred
              feet (100') to the rear of a motor vehicle in normal daylight, but
              shall not project a glaring or dazzling light.

T.C.A. § 55-9-402(b). In addition, “[e]ach lamp and stoplight required in this section shall
be in good condition and operational.” T.C.A. § 55-9-402(c).

        In State v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), the Tennessee Supreme Court
considered whether there was reasonable suspicion to stop a vehicle based on a violation of
Tennessee Code Annotated section 55-9-402. In Brotherton, the defendant had a broken
taillight which he had attempted to repair with red taillight tape, a translucent tape sold for
such purpose. Brotherton, 323 S.W.3d at 869 & n.3. The tape covered more than half of the

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lens, but was weathered and had a hole in it which permitted bright white light to shine
through. Id.

        In Brotherton, the Court held that the proper inquiry was whether law enforcement
had an articulable and reasonable suspicion that the taillight violated Tennessee Code
Annotated section 55-9-402. Id. at 871. The Court concluded that there was reasonable
suspicion to stop the vehicle because the repair permitted a bright, white light to shine
through the tape, and the taillight therefore “did not appear to be in good condition for the
purpose of Tenn. Code Ann. § 55-9-402(c).” Id. at 871-72. The Court also concluded that
the white light provided an articulable and reasonable suspicion that the driver had violated
the statute because the taillight was not red as required by Tennessee Code Annotated section
55-9-402(b)(1). Id. As a third reason to initiate an investigatory stop, the Court concluded
that the officer had reasonable suspicion subsection (b)(2) had been violated because the light
coming through the tape was described as “glaring” by the officer. Id. The Court’s analysis
also made reference to United States v. Johnson, 242 F.3d 707 (6th Cir. 2001), in which the
Sixth Circuit upheld a traffic stop based on a taillight which was missing a piece of the red
lens. Johnson, 242 F.3d at 710.

       We conclude that the case at bar is indistinguishable from Brotherton. Under
Brotherton, Officer Brock had reasonable suspicion to believe that the defendant had violated
Tennessee Code Annotated section 55-9-402(b)(1), requiring that the taillight be red, and
Tennessee Code Annotated section 55-9-402(c), requiring that the taillight be in good
condition. See Brotherton, 323 S.W.3d at 871-72. Accordingly, there was no violation of
the right against unreasonable searches and seizures.

                                      CONCLUSION

        Because we conclude that law enforcement had a reasonable suspicion that the
defendant had violated Tennessee Code Annotated section 55-9-402, we affirm the judgment
of the trial court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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