                                                                                           12/18/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  May 9, 2017 Session

          STATE OF TENNESSEE v. STEVEN DAVID CATALANO

                Appeal from the Circuit Court for Williamson County
                    No. I-CR160221 Joseph Woodruff, Judge
                     ___________________________________

                           No. M2016-02272-CCA-R3-CD
                       ___________________________________


The Appellant, Steven David Catalano, entered a plea of nolo contendere to driving under
the influence (DUI), reserving a certified question of law challenging whether a be-on-
the-lookout report (BOLO) issued by a Brentwood police officer provided sufficient
probable cause or reasonable suspicion to justify a Franklin police officer’s traffic stop of
the Appellant’s vehicle. The State contends that the question presented is not dispositive;
therefore, this court is without jurisdiction to consider the appeal. Upon review of the
record and the parties’ briefs, we agree with the State and conclude that the appeal must
be dismissed.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and ROBERT H. MONTGOMERY, JR., JJ., joined.

Grover Christopher Collins, Nashville, Tennessee, for the Appellant, Steven David
Catalano.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       On April 11, 2016, the Williamson County Grand Jury returned an indictment
charging the Appellant with DUI and DUI per se, which is driving under the influence
with a blood alcohol content of .08% or greater. See Tenn. Code Ann. § 55-10-401(1),
(2). Thereafter, on July 13, 2016, the Appellant filed a motion to suppress evidence
regarding his seizure and the resulting blood alcohol test, arguing that the officer did not
have reasonable suspicion or probable cause to justify the traffic stop.

       At the suppression hearing, Officer Stan Boyd, Jr., with the Brentwood Police
Department testified that at 2:42 a.m. on June 14, 2015, he was traveling southbound on
Interstate 65 north of Concord Road when he saw a dark-colored sport utility vehicle
(SUV) cross the right and left sides of its lane of travel multiple times. Officer Boyd saw
no other vehicles nearby and noticed nothing on the road to justify the SUV’s failure to
maintain its lane of traffic. Officer Boyd said that he was unable to stop the vehicle
because he was transporting someone to the Williamson County Jail. When he was
unable to find other Brentwood officers in the area, he provided the Franklin Police
Department’s dispatcher with “a description of the vehicle[,] . . . the tag information of
the vehicle and the last direction of traffic once it exited.” Officer Boyd followed the
SUV until it took the eastbound Cool Springs Boulevard exit. Officer Boyd said that he
spoke with the Franklin Police Department’s dispatcher no later than 2:46 a.m.

        Officer Boyd said that he video recorded the SUV’s erratic driving. As the video
was played for the court, Officer Boyd explained what was transpiring on the video.
Officer Boyd said that the section of the interstate on which the SUV was traveling had
four lanes in each direction. The first lane was identified as the far right lane, the second
lane was located to the left of the first lane, the third lane was to the left of the second
lane, and the high occupancy vehicle lane was to the left of the third lane. The SUV was
traveling in the second lane. The video showed that the SUV crossed the left “dashed
line,” returned to the second lane, drifted to the right twice, then drifted left and
“hover[ed]” in both the second and third lanes. The SUV slowed then gradually
increased its speed and drifted far enough to the right that both passenger side tires were
completely over the line into the first lane. Officer Boyd said that “half of the car [was]
over both lanes.” The SUV continued to drift from side to side and did not signal its lane
changes. Officer Boyd said that the SUV “put[] its right signal on at this point, drift[ed]
over, or ma[de] a lane change and then suddenly drift[ed] back over a solid white line
right in front of me with no direction,” which forced the officer to decrease his speed.
The vehicle then took the eastbound exit onto Cool Springs Boulevard. The video did not
show the vehicle after it left the exit ramp.

       On cross-examination, Officer Boyd said that as he was following the Appellant’s
vehicle, he told the Franklin Police Department’s dispatcher “what I was observing, a
vehicle failing to maintain its lane multiple times, exiting eastbound onto Cool Springs
Boulevard, and the tag number.” Officer Boyd did not recall whether he told the
dispatcher if the SUV was a “dark color or black” and thought he may have told the
dispatcher that the SUV was a Ford Explorer.

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        Officer Adam Cohen with the Franklin Police Department testified that around
2:46 a.m., he was in the middle of a traffic stop at the intersection of Interstate 65 and
Cool Springs Boulevard when he heard a BOLO from a Brentwood police officer
regarding a “possible intoxicated driver” traveling southbound on Interstate 65 just south
of Moores Lane. Officer Cohen gave the person he had stopped a “verbal warning” and
let him go. He then drove “westbound on Cool Springs Boulevard to get on to
southbound on Interstate 65” to look for the subject of the BOLO. However, he made a
“U-turn” when he heard the Brentwood officer relay that the vehicle, a black Ford
Explorer, had taken the eastbound Cool Springs Boulevard exit. Officer Cohen did not
recall knowing the tag number of the SUV.

       Officer Cohen said that he saw a dark-colored SUV traveling eastbound on Cool
Springs Boulevard. Officer Cohen followed the SUV as it turned southbound onto
Carothers Parkway and saw it turn right on Crescent Center Drive. Officer Cohen
explained that Crescent Center Drive had “one dedicated lane each way, and then there is
also a center turning lane that is dedicated for turning both ways.” The tires on the left
side of the SUV crossed over the left yellow line on Crescent Center Drive before making
a right turn into the Embassy Suites parking lot. Officer Cohen said that at that point,
“[b]ased off the BOLO I had received from the Brentwood Officer and also the failure to
maintain [the] lane I had just observed, I initiated a traffic stop.”

       A video recording of Officer Cohen’s pursuit of the SUV was played for the court.
The video began while Officer Cohen was performing the traffic stop that he abandoned
in order to look for the Appellant’s vehicle and continued through the stop of the
Appellant’s vehicle. The time stamp on the recording reflected that the officer stopped
the SUV at 1:48:54 a.m. Officer Cohen explained that the time stamp was one hour
behind the actual time of the stop because the recording device had not adjusted for
daylight savings time.

       On cross-examination, Officer Cohen acknowledged that in order to catch the
SUV, he had to drive “[p]retty fast,” sometimes as much as 73 miles-per-hour in a 40
miles-per-hour zone. Officer Cohen surmised that his driving at that speed was safe
because of the road conditions and because no other vehicles were on the road. Officer
Cohen acknowledged, however, that he “went a little wide to make” the right turn into
the Embassy Suites parking lot, explaining that “[a]t the speed I was travelling, which
was a bit fast, it kind of was necessary to make a little bit of a wider turn.”

      On redirect examination, Officer Cohen said that he saw nothing on Crescent
Center Drive which would prevent the SUV from safely maintaining its lane of travel.

      At the conclusion of the proof, defense counsel acknowledged that Officer Boyd
had probable cause “to initiate a traffic stop of the vehicle he saw.” Nevertheless,
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defense counsel argued that the State had not presented sufficient proof that the
Appellant’s SUV was the same SUV that Officer Boyd had seen, noting that Officer
Cohen failed to verify that the tag number of the Appellant’s vehicle was the same as the
tag number on the suspect vehicle. Defense counsel argued that numerous black SUVs
were in Williamson County. Defense counsel contended the Appellant “had to negotiate
that turn in the way that he did,” noting that Officer Cohen also made a wide turn into the
Embassy Suites parking lot.

      The State responded that Officer Cohen’s observations alone or his observations in
conjunction with Officer Boyd’s observations provided reasonable suspicion for the stop.

       The trial court stated that after considering the officers’ testimony and the two
videos, it agreed with the State’s argument. The court found that Officer Cohen “had
reasonable suspicion to initiate a traffic stop of the dark SUV that he observed. Under
those circumstances of Officer Boyd’s report, the general traffic conditions which there
were no other vehicles around.” The court further found that a “very brief” time had
elapsed between Officer Boyd’s issuance of the BOLO and Officer Cohen’s observation
of the Appellant’s SUV. The court noted that the officers saw no other vehicles on the
road at that time. The court further accredited Officer Cohen’s testimony that the
Appellant crossed the yellow line in an area with no visible obstructions or defects in the
road. The court said that Officer Cohen’s video also showed “that the [Appellant’s] car
came back into the right hand lane of travel heading straight for a distance . . . [before
turning] into the Embassy Suites,” belying the defense’s argument that “a reasonable
driver had to leave the lane of travel and then make a wide sweeping turn into the
Embassy Suites, because [in] fact he didn’t do that.” The court found that Officer Cohen
had reasonable suspicion and probable cause to initiate the traffic stop.

      Afterward, on November 3, 2016, the Appellant agreed to plead guilty to DUI in
exchange for the dismissal of the DUI per se charge. As a condition of his plea
agreement, the Appellant reserved the following certified question of law:

              Whether the information provided to Officer Adam Cohen,
              FPD[,] by [O]fficer Stan Boyd, BPD[,] through a BOLO
              established a sufficient nexus among[] the location and
              description of the vehicle observed by Officer Boyd, and the
              vehicle seized by Officer Cohen where the only alleged
              reasonable suspicion leading to stop the [Appellant’s] vehicle
              was based upon the information provided by Officer Boyd of
              a “Ford Explorer, Black,” weaving, exiting Interstate 65
              around the Cool Springs Boulevard exit, Officer Cohen
              testified that he was only investigating a DUI, and whether
              the evidence seized pursuant to the stop violated [the
                                           -4-
              Appellant’s] protections against unreasonable searche[s] and
              seizures as guaranteed by the Fourth Amendment to the
              United States Constitution and [a]rticle I, section 7 of the
              Tennessee Constitution.

                                        II. Analysis

       Tennessee Rule of Criminal Procedure 37(b)(2)(A) provides that a certified
question may be reserved when:

              (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 of the
              case . . . .

See also Tenn. R. Crim. P. 37(b)(2)(D); State v. Preston, 759 S.W.2d 647, 650 (Tenn.
1988).

       The trial court, the Appellant, and the State agreed that the certified question was
dispositive of the case. However, on appeal, the State contends that the question is not
dispositive. We agree with the State.

       Generally, a “question is dispositive when the appellate court must either affirm
the judgment [of conviction] or reverse and dismiss [the charges].” State v. Dailey, 235
S.W.3d 131, 134 (Tenn. 2007) (internal quotations and citations omitted). “If the
appellate court does not agree that the certified question is dispositive, appellate review
should be denied.” Preston, 759 S.W.2d at 651.
                                            -5-
       The Appellant’s certified question is limited to whether the information provided
by Officer Boyd justified Officer Cohen’s traffic stop of the Appellant’s SUV. However,
the certified question does not challenge Officer Cohen’s independent observations. We
conclude that Officer Cohen’s observations alone, namely that the Appellant failed to
maintain his lane, gave Officer Cohen reasonable suspicion to justify the traffic stop. See
Tenn. Code Ann. § 55-8-123(1). Therefore, we conclude that the Appellant’s certified
question is not dispositive of the case. See State v. Prince Dumas, No. W2015-01026-
CCA-R3-CD, 2016 WL 4083256, at *2 (Tenn. Crim. App. at Jackson, Aug. 1, 2016).

                                     III. Conclusion

       Accordingly, we conclude that the Appellant’s appeal must be dismissed.



                                          ____________________________________
                                          NORMA MCGEE OGLE, JUDGE




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