         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     May 9, 2006 Session

               STATE OF TENNESSEE v. MARKUS K. HARTLEY

                    Appeal from the Circuit Court for Williamson County
                             No. I-CR09589 Jeff Bivins, Judge



                     No. M2005-02523-CCA-R3-CD - Filed July 25, 2006


The appellant, Markus K. Hartley, was indicted by the Williamson County Grand Jury for driving
under the influence, fourth offense. The appellant filed a motion to suppress the evidence, arguing
that the police did not have probable cause to stop his vehicle. The trial court denied the motion to
suppress the evidence. Subsequently, the appellant pled guilty to driving under the influence, second
offense, but reserved a certified question of law to determine whether the trial court properly ruled
on the motion to suppress. Because the trial court properly denied the motion to suppress, we affirm
the judgment of the trial court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN E.
GLENN , J., joined.

David H. King, Franklin, Tennessee, for the appellant, Markus Hartley.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Ron Davis, District Attorney General; and Georgia Felner, Assistant District Attorney General, for
the appellee, State of Tennessee.


                                            OPINION

        On September 13, 2004, the Williamson County Grand Jury indicted the appellant for driving
under the influence, fourth offense. The appellant subsequently filed a motion to suppress in which
he argued that “all the evidence gathered against him [had] been procured by an illegal and improper
stop of his automobile.”

       At the suppression hearing, Officer Craig Wright testified that he was patrolling the Cool
Springs area near the mall in Franklin, Tennessee, during the early morning hours of May 6, 2004.
Even though Officer Wright was on routine patrol, he had been instructed by his superior officer to
“pay particular attention” to the restaurant areas due to the Cinco de Mayo holiday on May 5.

       While on patrol in the area, Officer Wright encountered the appellant walking on foot in the
mall parking lot area. The appellant crossed the street in front of Officer Wright’s patrol car, and
the appellant’s “unsteadiness on his feet . . . alerted” Officer Wright’s attention. According to
Officer Wright, the appellant was “swaying” and appeared like he was “almost tripping over
something” as he was walking. Though Officer Wright felt that the appellant “presented a danger
to himself or to others at that point” due to his “walking in the parking lot,” the officer merely
observed the appellant because he was already en route to a “welfare check” on another man
vomiting in the parking lot about ten feet away.

        As Officer Wright was performing the “welfare check”, he saw the appellant in a nearby
parking lot leaning against a car. When the “welfare check” was completed, approximately eight to
ten minutes later, Officer Wright proceeded to the parking lot where he saw the appellant leaning
against the car. At that point, Officer Wright saw a car backing out of a parking space in the parking
lot. Officer Wright felt he was “pretty sure” that the car was the same car that the appellant was
leaning against during the “welfare check”. The car pulled forward at that point and parked in a
space next to another car. Officer Wright pulled in behind the car, activated his blue lights, and
initiated a traffic stop at that time.1 The appellant was the driver of the car. The facts at the
suppression hearing were undisputed.

        At the conclusion of the hearing, the trial court determined that “the defendant’s state and
federal constitutional rights were not violated and the stop was not an illegal one” and denied the
motion to suppress.

         Subsequently, the appellant pled guilty to driving under the influence, second offense. The
trial court sentenced the appellant to confinement for eleven months and twenty-nine days and fined
the appellant $600. The trial court suspended all but forty-five days of the sentence, and agreed that
the appellant would receive jail credit for up to twenty-eight days of inpatient treatment. The trial
court also ordered the appellant to follow all aftercare directives and suspended the appellant’s
driving privileges for two years. Pursuant to the plea agreement, the appellant reserved the right to
appeal a certified question of law challenging the trial court’s denial of his motion to suppress. See
Tenn. R. Crim. P. 37(b)(2)(i). The appellant filed a timely notice of appeal. On appeal, the appellant
presents the following certified question of law: “Did the trial court err when it failed to grant
Defendant’s motion to suppress the evidence gathered against the Defendant as a result of an
improper and illegal stop?”




         1
           From the transcript of the suppression hearing, it appears that a videotape of the traffic stop was entered into
evidence and reviewed by the trial court during Officer W right’s testimony. For unknown reasons, the videotape is not
part of the record on appeal.

                                                           -2-
                                               Analysis

        The appellant argues on appeal that there was no reasonable suspicion for Officer Wright to
stop his car. Specifically, the appellant argues that the totality of the circumstances demonstrates
a lack of reasonable suspicion because Officer Wright testified to a mere “possibility” that the
appellant was the person driving the car. The State argues that the trial court properly denied the
motion to suppress.

        The trial court’s findings of fact in a suppression hearing will be upheld on appeal unless the
evidence preponderates against those findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
Questions 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. Id. The party
prevailing in the trial court 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. Id. However, the application of the law to the trial court’s findings of fact is a question
of law subject to de novo review. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        The Fourth Amendment to the United States Constitution, made applicable to the States by
the Fourteenth Amendment, and Article I section 7 of the Tennessee Constitution, protect citizens
against unreasonable searches and seizures. Consequently, under both the federal and state
constitutions, a warrantless search or seizure is presumed unreasonable, and evidence discovered as
a result thereof is subject to suppression unless the State demonstrates by a preponderance of the
evidence that the search or seizure was conducted pursuant to one of the narrowly-defined exceptions
to the warrant requirement. State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998). The federal and
state constitutions’ prohibitions against unreasonable searches and seizures also apply to vehicles.
Simpson, 968 S.W.2d. at 780. Accordingly, we must first determine whether the detention of the
appellant by the police officer amounted to a seizure. If so, we must then determine whether the
officer possessed an articulable reasonable suspicion for an investigatory stop under Terry v. Ohio,
392 U.S. 1 (1968), and its progeny. “Only when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has
occurred.” Terry, 392 U.S. at 19 n.16; State v. Hord, 106 S.W.3d 68, 70 (Tenn. Crim. App. 2003).
The Supreme Court stated that “a person has been seized’ within the meaning of the Fourth
Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554
(1980); Hord, 106 S.W.3d at 71. Further, our supreme court has stated that “[w]hen an officer turns
on his blue lights, he or she has clearly initiated a stop . . . [and the vehicle’s driver is] ‘seized’
within the meaning of the Terry decision.” State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).

        In the case herein, it is clear that the appellant was “seized” within the meaning of the state
and federal Constitutions. Officer Wright testified that he turned on his lights and stopped the
appellant’s vehicle. Thus, in order for the stop to be constitutionally valid, at the time that Officer
Wright turned on his vehicle’s blue lights, he must have at least had reasonable suspicion, supported
by articulable facts, that the appellant had committed, or was about to commit a criminal offense.


                                                  -3-
        Police may constitutionally initiate an investigatory stop if they have reasonable suspicion,
supported by specific and articulable facts, that a person has either committed a criminal offense or
is about to commit a criminal offense. Terry, 392 U.S. at 20-21; State v. Randolph, 74 S.W.3d 330,
334 (Tenn. 2002); Simpson, 968 S.W.2d at 780. In evaluating whether a police officer has
reasonable suspicion supported by specific and articulable facts, a court must consider the totality
of the circumstances. United States v. Cortez, 449 U.S. 411, 417 (1981); State v. Watkins, 827
S.W.2d 293, 294 (Tenn. 1992). This inquiry looks to such factors as the public interest served by
the seizure, the nature and scope of the intrusion, and the objective facts on which the law
enforcement officer relied in light of his experience. See State v. Pulley, 863 S.W.2d 29, 30-31
(Tenn. 1993). “This includes, but is not limited to, objective observations, information obtained
from other police officers or agencies, information obtained from citizens, and the pattern of
operation of certain offenders.” Watkins, 827 S.W.2d at 294; see Cortez, 449 U.S. at 418. “A court
must also consider the rational inferences and deductions that a trained police officer may draw from
the facts and circumstances known to him.” Watkins, 827 S .W.2d at 294; see Terry, 392 U.S. at 21.
“Finally, the content, quality, and quantity of information possessed by police must be assessed in
determining whether it is sufficiently reliable to support a finding of reasonable suspicion.” State
v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998). The officer, of course, must be able to articulate
something more than an inchoate and unparticularized suspicion or hunch. The Fourth Amendment
requires some minimal level of objective justification for making the stop. That level of suspicion
is considerably less than proof of wrongdoing by a preponderance of the evidence. Keith, 978
S.W.2d at 867 (quoting United States v. Sokolow, 490 U.S. 1, 7-8 (1989)). As a general rule, the
stop of an automobile is constitutionally reasonable, under both the state and federal constitutions,
if the police have probable cause or reasonable suspicion to believe that a traffic violation has
occurred. State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997); State v. Willie Norman, No.
W2003-02067-CCA-R3-CD, 2004 WL 2255253, at *6 (Tenn. Crim. App., at Jackson, Oct. 7, 2004)
(holding that a police officer had reasonable suspicion to stop a defendant because the defendant ran
a stop sign and had his music playing “extremely loud”).

         The appellant herein asserts that his actions did not give Officer Wright reasonable suspicion
to stop his vehicle and cites State v. Paul Dotterweich, No. E2004-023839-CCA-R3-CD, 2005 WL
1919780, at *1 (Tenn. Crim. App., at Knoxville, Aug. 10, 2005), to support his argument. In
Dotterweich, an informant told two officers that the men they just passed in a parking lot were
involved in a fight. When the officers turned around and went back to the parking lot in the direction
the men were traveling, the officers observed a vehicle leaving the scene. The officers initiated a
traffic stop of the vehicle. Upon stopping the vehicle, the officers observed that the driver smelled
strongly of alcohol. Id. On appeal, this Court determined that based on the totality of the
circumstances, the officers had specific and articulable facts upon which to base a reasonable
suspicion for the traffic stop. Id. at *4. The appellant argues that unlike Dotterweich, in the
appellant’s case there was “no proof that the [appellant’s] car . . . was the only car leaving [the area],
the lapse of time in which the [appellant] was seen [was eight to ten minutes], [there was no proof
that there were] . . . other people or cars entering or leaving the parking area or a host of other
possible specific and articulable facts [existed] which could have led this officer to ‘reasonable
suspicion.’”


                                                   -4-
         We disagree with the appellant’s interpretation and analysis of Dotterweich. In the case
herein, Officer Wright actually witnessed the appellant’s apparent intoxication prior to seeing the
appellant lean on a car. Officer Wright described the appellant as unsteady on his feet and stated that
he was almost “tripping” as he walked across the street into the parking lot. At the time the officer
first saw the appellant, he felt that the appellant was a safety risk to himself and others, but was
compelled to stay at the site of the “welfare check” because he could not leave his partner with two
individuals. After completing the “welfare check”, Officer Wright saw what he was “pretty sure”
was the same car backing out of a parking space in a nearby parking lot. Thus, we support the
“rational inferences and deductions” that Officer Wright, a trained police officer who had made over
one hundred driving under the influence arrests, drew from the facts and circumstances on May 6,
2004. Watkins, 827 S .W.2d at 294; see Terry, 392 U.S. at 21.2 Accordingly, we determine that the
totality of the circumstances shows that Officer Wright had ample objective facts upon which to base
a reasonable suspicion that the appellant was driving the vehicle while intoxicated. Consequently,
the judgment of the trial court is affirmed.

                                                     Conclusion

         For the foregoing reasons, the judgment of the trial court is affirmed.




                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




         2
           W e were unable to review the videotape of the traffic stop in our review as it was not included in the record
on appeal. It is the duty of the appellant to provide and prepare a complete and accurate record on appeal. Tenn. R. App.
P. 24(b). The failure to prepare an adequate record for review of an issue ordinarily results in a waiver of that issue.
Thompson v. State, 958 S.W .2d 156, 172 (Tenn. Crim. App. 1997). However, because we were provided with a
transcript of the suppression hearing in the record on appeal, we were able to address the appellant’s issue on appeal.




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