        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               February 2, 2016 Session


                  STATE OF TENNESSEE v. PRINCE DUMAS

                 Appeal from the Criminal Court for Shelby County
                      No. 1304342    W. Mark Ward, Judge




               No. W2015-01026-CCA-R3-CD - Filed August 1, 2016
                        _____________________________

The defendant, Prince Dumas, entered a guilty plea to one count of a first offense for
driving under the influence (“DUI”), a Class A misdemeanor. As part of the plea, the
defendant reserved a certified question of law. The defendant asserts that police initiated
a seizure without reasonable suspicion and that because all of the evidence stems from
this seizure, he is entitled to have the indictment dismissed. We conclude that the
defendant‟s certified question, as drafted, is not dispositive of the case, and we are
accordingly constrained to dismiss the appeal.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Claiborne Ferguson, Memphis, Tennessee (at plea and on appeal), and David Willis,
Memphis, Tennessee (at hearing), for the Appellant, Prince Dumas.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Michael McCusker,
Assistant District Attorney General, for the Appellee, State of Tennessee.
                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

       The defendant was arrested for DUI, and he moved to suppress the evidence
obtained during his encounter with law enforcement. The only evidence at the
suppression hearing came from one of the police officers involved in the defendant‟s
arrest. Officer Brian Redick testified that on October 11, 2012, at approximately 1:45
a.m., he was conducting a traffic stop when a citizen flagged him down and told him that
a “suspicious vehicle” was “sitting off the side of the roadway.” It took Officer Redick
about three or four minutes to finish with the traffic stop, and he proceeded less than a
quarter of a mile down the road, where he found the defendant‟s vehicle.

       The defendant‟s vehicle was pulled off of the road into a field. The vehicle was
parked approximately fifteen feet from the edge of the road. Officer Redick testified that
when he saw the vehicle off to the side of the road, he activated his blue lights and ran the
license plate to make sure it had not been reported stolen. Officer Redick then walked up
to the vehicle. He could not see that anyone was in the vehicle at the time that he was
approaching it. Once he got up to the vehicle, he saw that the defendant was in it and that
the defendant was asleep. The car was running.

       Officer Redick knocked on the window. The defendant either rolled down the
window or opened the door. The defendant‟s speech was slurred, and an odor of alcohol
emanated from his vehicle and from his person. At this point, Officer Redick put the
defendant in handcuffs and put him into the police vehicle while he waited for a DUI
officer to arrive. The defendant appeared unsteady on his feet and submitted to a
breathalyzer test. At the plea hearing, the prosecutor stated that the defendant failed field
sobriety tests and had a blood alcohol content of 0.151 percent according to the
breathalyzer.

       Officer Redick testified that he had encountered a vehicle under similar
circumstances approximately twenty times, and that in fifteen of those, the driver was
intoxicated, while in the others the car was stolen or the driver was merely sleeping. He
acknowledged that he did not know at the time whether or not the defendant was the
owner of the field in which his vehicle was parked.

        The trial court denied the motion to suppress. In doing so, the trial court found
that the activation of the emergency lights did not constitute a seizure. The trial court
did not make a determination of exactly when the seizure occurred, but it unambiguously
stated that “there was no seizure involved by turning on the blue lights.” The trial court
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offered alternative reasons for this finding. First, it found that there was no seizure
because the defendant, who was asleep, was not aware that the lights were activated. As
an alternative, the trial court found that the police officer had activated his lights in his
community caretaking role, finding that “it‟s certainly reasonable for an officer to check
on a car at 1:45 in the morning in a field to see if somebody is hurt” and that “it‟s
reasonable to activate your blue lights before you leave the car.” The trial court
determined that even if it were to conclude that the activation of the lights constituted a
seizure, there was reasonable suspicion to detain the defendant at the time the lights were
activated based on the time of night, the fact that the vehicle was running, and the
vehicle‟s location off the road.

      The defendant entered a guilty plea pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2)(A), reserving the following certified question of law:

              Did the Court err in not granting the Defendant‟s Motion to
              Suppress based on the initial stop and seizure (i.e., turning on
              the blue lights) not being supported by reasonable articulable
              suspicion for the stop. The question is based on the State v.
              Moats, 403 S.W.3d 170 (Tenn. 2013) case law regarding the
              illegality of traffic stops without reasonable suspicion. This
              is a dispositive question because if the stop and initial seizure
              was invalid, all evidence of impairment and driving would be
              suppressed and the State would have no evidence to proceed
              on a prosecution of Driving Under the Influence. The
              conviction would be invalid.

                                       ANALYSIS

       In the case at bar, the strict requirements of Tennessee Rule of Criminal Procedure
37(b) once again preclude the review of a certified question of law. We have noted in the
past that this rule has become “the quagmire of criminal jurisprudence in Tennessee.”
State v. Thompson, 131 S.W.3d 923, 923-24 (Tenn. Crim. App. 2003). We have also
described it as “a trap” which does not function as intended. State v. Danny Harold Ogle,
No. E2000-00421-CCA-R3-CD, 2001 WL 38755, at *4 (Tenn. Crim. App. Jan. 17,
2001).

        Under Tennessee Rule of Criminal Procedure 37(b), review is limited to the
questions which are identified in the certified question and which were decided by the
trial court. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). This court cannot
reach beyond the scope of the certified question which has been preserved by the parties.
State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008) (“[N]o issue beyond the scope of the
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certified question will be considered.”). Our jurisdiction to hear the certified question is
“predicated upon the [statutory] provisions for reserving a certified question of law.”
State v. Jon Michael Johnson, No. M2014-01834-CCA-R3-CD, 2015 WL 6164009, at *5
(Tenn. Crim. App. Oct. 21, 2015).

       Tennessee Rule of Criminal Procedure 37(b)(2)(A) requires that the certified
question be dispositive of the case. A certified question is dispositive when the appellate
court must either affirm the judgment or reverse the judgment and dismiss the charges.
State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001). When the appellate court might reverse
and remand, the issue is not dispositive. State v. Wilkes, 684 S.W.2d 663, 667 (Tenn.
Crim. App. 1984).

       Failure to properly certify a dispositive question of law results in dismissal. State
v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The reviewing court must make an
independent determination regarding whether the question presented is dispositive of the
case. State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007). The relevant issue is whether
the question is dispositive on the record presented on appeal. Id.

        The trial court‟s decision regarding a motion to suppress is not dispositive when
there is additional, unchallenged evidence which could be used to support the conviction.
See State v. William Jeffery Sweet, No. E2008-00100-CCA-R3-CD, 2009 WL 2167785,
at *11 (Tenn. Crim. App. July 21, 2009) (concluding that question of the admissibility of
a blood alcohol test was not dispositive when witnesses were available to testify that the
defendant had been drinking and was driving erratically); State v. John Whittington, No.
W2004-02405-CCA-R3CD, 2005 WL 3059423, at *3 (Tenn. Crim. App. Nov. 10, 2005)
(noting that an officer‟s testimony that the defendant exhibited signs of intoxication could
support a conviction without the breathalyzer test, and the question of the suppression of
the breathalyzer was only dispositive when the conviction was DUI per se); State v. Jared
C. Brown, No. M2004-02101-CCA-R3-CD, 2005 WL 2139815, at *5 (Tenn. Crim. App.
Aug. 30, 2005) (dismissing appeal when the defendant failed to challenge a separate
warrant for a search performed at a delivery facility which yielded evidence to support
the conviction); State v. Kevin Bufford, No. M2004-00536-CCA-R3-CD, 2005 WL
1521779, at *4 (Tenn. Crim. App. June 24, 2005) (dismissing appeal because defendant‟s
confession made after seizure was not dispositive when there was video evidence of one
crime and codefendant implicated him in all offenses); State v. Michael Kennedy, No.
W2001-03107-CCA-R3-CD, 2003 WL 402798, at *3 (Tenn. Crim. App. Feb. 21, 2003)
(holding that question of consent to search was not dispositive when the victim could also
testify to defendant‟s possession of stolen items).

       In fact, we have dismissed certified questions raising the validity of the basis for a
search when the search in question was also supported by alternative bases. In State v.
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Thurman G. Ledford, this court concluded that the question of whether the smell of
ammonia was sufficient to support the warrant was not dispositive because the warrant in
fact contained other information, including citizen complaints of visitors at all hours who
generally stayed only ten minutes. No. E2002-01660-CCA-R3-CD, 2003 WL 21221280,
at *1, 4 (Tenn. Crim. App. May 22, 2003) (“The strong odor of ammonia is not
determinative or dispositive because the validity of the search warrant can still rest on
other information supplied in the affidavit.”). We note, however, that in State v. Day, the
Tennessee Supreme Court reviewed whether there was reasonable articulable suspicion
for a stop despite the fact that the trial court decided the motion to suppress on an
alternative ground. In Day, the trial court had upheld the stop of a vehicle based on the
community caretaking doctrine.          Day, 263 S.W.3d at 899 (“[T]he trial court
acknowledged that it was a close question, but ultimately concluded that „public safety‟
concerns rendered the stop valid.”). However, the certified question raised only the issue
of whether there was reasonable suspicion to initiate a traffic stop. Id. The Tennessee
Supreme Court noted that its “consideration of the stop under the community caretaking
exception might well yield a different outcome,” but ultimately only decided that there
was not reasonable suspicion to initiate the stop. Id. at 900. The dissent in Day suggests
that the better course would have been to dismiss the appeal as improvidently granted.
Id. at 906 (Koch, J., dissenting in part).

        The certified question here raises the issue of whether there was reasonable,
articulable suspicion justifying a seizure. Although it cites to State v. Moats, 403 S.W.3d
170 (Tenn. 2015) overruled by State v. Kenneth McCormick, No. M2013-02189-SC-R11-
CD, __ S.W.3d __, 2016 WL 2742841, at *7 (Tenn. May 10, 2016), the certified question
does not raise the issue of whether the stop was justified under the community caretaking
doctrine. Neither does the certified question ask this court to review the trial court‟s
initial determination that turning on the emergency lights did not constitute a seizure.

       A certified question may be rendered nondispositive by the failure to raise an
underlying issue when the determination of that underlying issue is necessarily the basis
of the disputed question. In State v. Christopher Christie, the defendant wished to
challenge the indictment as violative of the statute of limitations based on the premise
that a custodial arrest was contrary to statute and that the warrants for the arrest, which
purported to toll the statute, were consequently void. No. M2006-00612-CCA-R3-CD,
2007 WL 152484, at *2 (Tenn. Crim. App. Jan. 18, 2007). This court concluded that the
defendant‟s failure to preserve the record regarding the trial court‟s determination of the
validity of the custodial arrest rendered the remaining arguments nondispositive, and we
dismissed based on this ground and other procedural failures. Id. at *3. Here, likewise,
the defendant questions the reasons underlying the activation of the blue lights but does
not raise the basis of the denial of suppression: the finding that there was no seizure at
the time the lights were activated.
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        The certified question here clearly limits the scope of our review to whether “the
initial stop and seizure (i.e., turning on the blue lights)” was “supported by reasonable[,]
articulable suspicion for the stop.” However, the trial court‟s explicit finding (the
correctness of which is not within the scope of review) was that there was no seizure
when the blue lights were activated. We have previously recognized that not every
activation of a patrol car‟s emergency equipment constitutes a seizure. See State v.
Robert Lee Vandergriff, Jr., No. E2010-02560-CCA-R3CD, 2012 WL 2445049, at *1
(Tenn. Crim. App. June 28, 2012); State v. James Dewey Jensen, Jr., No.
E2002-00712-CCA-R3-CD, 2002 WL 31528549, at *1 (Tenn. Crim. App. Nov. 15,
2002). Accordingly, whether there was reasonable, articulable suspicion to stop the
defendant at the time that the blue lights were activated is not dispositive of this
particular conviction, given the unchallenged conclusion that there was no seizure until
some unspecified time after Officer Redick had approached the vehicle on foot.

       We note that, although the trial court did not have the benefit of the Supreme
Court‟s recent decision in State v. Kenneth McCormick, 2016 WL 2742841, the court‟s
determination that Officer Redick was acting within his community caretaking role is
consistent with our high court‟s most recent jurisprudence in that area. In McCormick, a
law enforcement officer discovered the defendant‟s vehicle at 2:45 a.m., sitting with its
headlights on, partially blocking the entry to a shopping center and partially in the
roadway. McCormick, 2016 WL 2742841, at *1. The officer turned on his “back blue
lights” and ultimately discovered the intoxicated defendant in the running vehicle. Id.
The Court noted that it would, “for the purposes of this appeal” assume that the activation
of lights was a seizure. Id. at *5. The Court held that a warrantless seizure is justified
under the community caretaking exception when the State can show that:

              (1) the officer possessed specific and articulable facts which,
              viewed objectively and in the totality of the circumstances,
              reasonably warranted a conclusion that a community
              caretaking action was needed, such as the possibility of a
              person in need of assistance or the existence of a potential
              threat to public safety; and (2) the officer‟s behavior and the
              scope of the intrusion were reasonably restrained and tailored
              to the community caretaking need.

Id. at *9. While the trial court provided several alternative bases for its conclusion that
the evidence should not be suppressed, these bases were not raised by the question
preserved by the parties. Neither was the trial court‟s determination that law enforcement
did not seize the defendant at the time that the blue lights were activated.

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       We conclude that in this case, the failure to preserve for review the trial court‟s
determination that the activation of the blue lights did not constitute a seizure renders
meaningless the actual question presented, which is whether there was reasonable,
articulable suspicion to turn on the blue lights. Accordingly, the appeal is dismissed.

                                    CONCLUSION

       Having been presented with a certified question which is not dispositive of the
case before us, we are constrained to dismiss the appeal.




                                                _________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




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