        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             September 28, 2010 Session

     STATE OF TENNESSEE v. CLIFFORD EDWARD CLARK, ALIAS

               Direct Appeal from the Criminal Court for Knox County
                      No. 90252    Mary Beth Leibowitz, Judge


                No. E2009-01795-CCA-R3-CD - Filed October 24, 2011


Defendant-Appellee, Clifford Edward Clark, was indicted by the Knox County Grand Jury
for vandalism of property valued at $1,000 or more but less than $10,000, a Class D felony,
and reckless endangerment committed with a deadly weapon, a Class E felony. Clark filed
several motions to suppress evidence and dismiss the indictment because of lost or destroyed
evidence pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), which were denied.
Clark then filed a motion to reconsider, which the trial court took under advisement. The
trial court subsequently dismissed the indictment and suppressed certain evidence pursuant
to both Ferguson and Arizona v. Gant, 129 S. Ct. 1710 (2009). In this appeal by the State,
it argues that the trial court abused its discretion in dismissing the indictment and erred in
granting Clark’s motions to suppress based on its holdings that: (1) the search of Clark’s
vehicle violated Gant, and (2) the State’s loss or destruction of certain evidence violated
Ferguson. Upon review, we reverse the trial court’s judgment, reinstate Clark’s indictment,
suppress the photographic evidence of the camera housing, and remand for trial.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                            Reversed and Remanded

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Randall Eugene Nichols, District Attorney General; and Zane M. Scarlett, Assistant District
Attorney General, for the Appellant, State of Tennessee.

Ronald C. Newcomb, Knoxville, Tennessee for the Defendant-Appellee, Clifford Edward
Clark, Alias.

                                         OPINION
                                    FACTUAL BACKGROUND

        On November 25, 2007, Clark was stopped by officers as he was leaving the parking
lot of a closed business where the officers had just heard four shots fired. During a Terry1
pat-down search, an officer discovered two rifle scope lens covers. At the same time, a
second officer observed a rifle case partially covered by a windshield sun shade behind
Clark’s seat. Inside the rifle case was a Ruger rifle and a box of rifle rounds with four bullets
missing. Immediately thereafter, the officers discovered that a nearby red light traffic camera
had been shot four times.

       Arrest Report. Officer James Cox of the Knoxville Police Department provided the
following written report regarding this case:

       On [November 25, 2007,] at 1:45 a.m., I[,] Officer Cox 1811, Officer J. Keck
       1617[,] and Officer W. Bingham 1833 were stopped near the [i]ntersection [of]
       Broadway and I-640. We heard what sounded like two very loud gun shots
       [sic]. We began to circulate the area when a [third] shot sounded out. I
       stopped on Broadway about 100 feet from the [r]ed light camera on Broadway
       and I-640 when I heard the fourth shot. I could tell it was coming from a
       closed business on Greenway Dr[.] at Broadway[,] (Pittman Auto)[.] We
       began to drive around the building when a silver [Chrysler] minivan Texas Tag
       # 948wgc c[a]me out from behind the business at a high rate of speed. I
       initiated a traffic stop[,] and the vehicle stopped on Greenway Dr[.] at
       Broadway. The suspect (Clifford [Edward] Clark []) tried to exit the vehicle
       when he stopped. I ordered him to stay still and show me both his hands. I
       had him step out of the vehicle and place both hand[s] on the side of the van.
       I began to do a [T]erry pat[-down] when I felt two round objects in his right
       coat pocket. I asked him what they were and he stated he did not know and to
       take them out and look. I reached in a[nd] pulled out two scope lens covers.
       I detained him and asked him where the [rifle] was he had been shooting. He
       stated he had no [rifle] and a friend put [the lens covers] in his pocket. He was
       very nervous and [was] being very vague. Officer Keck looked inside his van
       and could see a [rifle] bag. In the bag was the Ruger [rifle] with scope. I read
       him his [Miranda] rights and asked him what was he shooting at [sic]. He told
       me he could not say because it would get him in trouble. Officer Bingham
       found [three] shell casing[s] in the parking lot where [Clark] came from [sic].
       He [then] noticed that the [r]ed light camera had been shot [four] times, with
       [one] round [traveling] completely through [the camera]. In the [rifle] bag was


       1
           See Terry v. Ohio, 392 U.S. 1 (1968).

                                                   -2-
       a box of [rifle] rounds. The box held [twenty] rounds but only sixteen were in
       the box[, and] four were missing. I check[ed] the [rifle] and found [one] spent
       shell casing in the barrel. [Clark] made a statement that he was upset about
       getting a ticket from the red light camera[]. [Clark] was arrested for felony
       [v]andalism and [r]eckless [e]ndangerment. He was city cited for discharging
       a firearm in the city limits.

        Preliminary Hearing. At the February 7, 2008 preliminary hearing, Clark informed
the trial court that he would be proceeding pro se.

        Officer James Cox of the Knoxville Police Department testified that at approximately
2:00 a.m. on November 25, 2007, he, Officer Keck and another officer were sitting in a
parking lot completing paperwork when they heard a sound that resembled either a gunshot
or a truck backfiring. Approximately a minute later, they heard a second sound that they
confirmed was a gunshot, and the officers left the parking lot. Officer Cox stated that he and
the other officers split up and drove in different directions. As he was en route, Officer Cox
heard a third gunshot. At this point, Officer Cox stated that he could tell that the shots were
being fired from a “high-powered large caliber gun or rifle.” Officer Cox stated that he
drove to an area approximately 100 feet from the red light traffic camera at Broadway and
the I-640 ramp. He explained that the red light traffic camera’s function was “to catch
people who violate the red light law by running the red light there going southbound on
Broadway.” When he arrived at the location of the camera, he rolled down his windows to
see if he could hear any more shots. He then heard a fourth gunshot and could tell that it
came from a parking lot behind Pittman Automotive, a repair shop. He drove toward the lot
behind Pittman Automotive, and as he approached the closed business, he saw a minivan pull
out of the parking lot and turn left, passing him on Greenway Drive. He first saw this
minivan approximately one minute after he heard the fourth gunshot. He notified the other
officers that this vehicle had left the area where the gunshots originated. Officer Cox turned
around and “initiated a traffic stop[.]” The minivan stopped on Greenway Drive, just short
of Broadway. Officer Cox stated that he saw no other vehicles near Pittman Automotive at
the time that he heard the gunshots.

       Officer Cox identified Clark as the driver of the minivan that he stopped on November
25, 2007. He stated that he cautiously approached Clark: “I was not sure what the exact
weapon we were looking for was [sic]. He [might or might not] have it on his person . . . .
And so I . . . approached him[] and started to talk to him through the window.” Officer Cox
said that the other officers quickly arrived at the location of the traffic stop. He then
described his interaction with Clark:

       I told [Clark,] the driver of the vehicle – I advised him to step out, told him I
       was going to check for weapons. I patted him down. I felt two cylindrical

                                              -3-
       objects in his right coat pocket. I asked him what they were. He told me he
       didn’t know but to check and see. I reached in there and pulled [the objects]
       out, and immediately recognized them as being two amber lens covers for a
       scope of a rifle.

       Officer Cox described the next series of events:

               I asked [Clark] where the rifle was that belonged to the scope . . . and
       he said he didn’t have the rifle. I asked him a couple of times and he said he
       didn’t have one. I asked him why did he have scope covers in his pocket and
       he told me that he let somebody borrow his jacket and . . . they must have put
       [the lens covers] in there.

        Officer Cox said that Officer Keck was standing nearby to ensure his safety during
his interactions with Clark. Officer Cox also said that a weapon was later retrieved from the
minivan. He stated that he was present when Officer Keck read Clark his Miranda rights.
Following the reading of his rights, Officer Cox asked Clark some questions:

       I just flat out asked him what he was shooting at [sic]. I said were you
       shooting at us, were you shooting at the cars on the interstate, the cars on
       Broadway, . . . or were you shooting at the [red light traffic] camera. It crossed
       my mind that the camera was sitting there. He said no.

Officer Cox then asked Clark if he had gotten a ticket from the traffic camera, and Clark said
that he did not know, but “he might have.” Clark then asked for an attorney and apologized
for “causing a situation.” At that point, Officer Cox took him into custody. Shortly
thereafter, Officer Cox looked at the traffic camera and observed that it had four entry holes
and one exit hole. He was not able to look at the inside of the camera. He also opened the
rifle case:

       [In the case] was [a] rifle, and a box of shells. I opened up the box of shells
       and found four empty slots . . . . I got on the radio and told my partner to go
       down to [the parking lot] where [Clark had come from] to make sure he wasn’t
       shooting at somebody. We never found anybody, but we did recover three
       shell casings. [I] picked the rifle up, ejected the bolt, and the fourth empty shell
       casing came out.

Officer Cox confirmed that Clark was the only individual inside the minivan.

      On cross-examination, Officer Cox acknowledged that the rifle case was under a large
windshield sun shade. He clarified that he was not the officer that found the rifle case.

                                               -4-
        Officer Jason Keck of the Knoxville Police Department testified that he was sitting
at the 640 Building just west of Broadway when he heard “a loud popping noise.” He said
that Officer Cox was sitting in his car next to him at the time, and he told Officer Cox that
the noise was a gunshot. When they heard a second gunshot, Officer Keck “pulled south of
Pittman Automotive, which is located on Broadway and Greenway” facing north. He said
Officer Cox drove closer to Pittman Automotive when they both heard a third gunshot.
Officer Keck said Officer Cox “got on the radio and said that he thought [the shots were]
coming from behind Pittman Automotive.” Officer Cox then drove northbound on Greenway
Drive, where he located a silver minivan. As Officer Cox initiated the traffic stop, Officer
Keck said he went with him for back-up because there was a “potential for danger” since
they had just heard shots. Clark was heading westbound on Greenway Drive near Broadway
at the point that he stopped his vehicle. Officer Keck confirmed that neither he nor Officer
Cox knew the target of Clark’s gunshots. He also identified Clark as the individual who was
driving the minivan. Officers Cox and Keck approached the minivan. Officer Keck
described what happened next:

               Officer Cox got Clark out of the van, asked him to step out, I suppose.
       [Clark] stepped out of the vehicle . . . . He then put his hands against the van,
       if I remember correctly, and Officer Cox started to pat him down. And when
       he was patting him down, he felt something apparently in his pocket, because
       Officer Cox, when he got to that right pocket of his jacket, he asked him what
       was in there. And Mr. Clark said something [like] I don’t know. . . .

              . . . [Clark said] look in there and find out, something to that effect.
       Officer Cox reached in his pocket and pulled out two lens covers for a scope.

Officer Keck stated that when Officer Cox safely secured Clark, he began looking inside the
minivan:

       I glanced into the vehicle. I saw a solar-type shade you use in the front of a
       windshield . . . . Underneath it I could see a nylon case that looked like a gun
       case to me. And so I got the case out of the van. I stepped over to one of the
       [patrol] cars, I believe, and unzipped it. It had a Ruger Model 77. [It was]
       stainless and . . . it had a scope on it. It was a 30.06.

Officer Keck said that in order for Clark to access the rifle, “[h]e would have to reach over
behind his driver’s seat [and] unzip the case[.]” Officer Keck later located three shell casings
in the back of Pittman Automotive. He said that in order to shoot the traffic camera from the
rear of Pittman Automotive, the bullet would have to pass across Broadway, and if it hit the
camera and passed through it, the bullet would continue toward I-640. He added that the rifle

                                              -5-
found in Clark’s vehicle was an “extremely high powered” weapon. He said that the rifle in
the case appeared to match the lens scope covers that Officer Cox had discovered in Clark’s
pocket. Officer Keck informed Officer Cox that he had found the rifle but did not handle the
weapon itself. Officer Keck then went back to the police car where Clark was located and
read his Miranda rights to him. Clark told Officer Keck that he did not want to talk to him
because he did not want to get in trouble. Clark then asked to speak with an attorney.2
Officer Keck said that photographs were taken of the shell casings, and the forensics lab was
told of the incident. He said that he viewed the traffic camera that night and observed four
entry holes and one exit hole.

       On cross examination, Officer Keck acknowledged that the windshield sun shade was
larger than the rifle case it covered. He also admitted that he did not actually see Clark
shooting at the traffic camera. He added that no traffic citations were issued to Clark the
night of the incident. On re-direct examination, Officer Keck clarified that the sun shade did
not completely cover the rifle case.

       Anthony Boreno, an employee of Redflex Traffic Systems, testified that his company
contracted with the Knoxville Police Department “to provide photographic evidence for the
automated enforcement program.” He stated that the owner of the traffic cameras was
Redflex Traffic Systems, who maintained and operated the cameras and provided the
evidence to the police department. He stated that the company had a technician in eastern
Tennessee who repaired any damaged cameras. Boreno said that his company was notified
that a traffic camera at I-640 and Broadway was damaged shortly after the incident on
November 25, 2007. He stated that the value of the camera in this case was $90,462, and the
repairs to the camera were approximately $17,000.

        Clark requested that the video recording of his traffic stop be entered into evidence.
The court reviewed the recording, which did not have audio, with the State and Clark. The
court stated that it could not see any tampering with the evidence but noted that the images
on the recording were blurry. The court also stated that it saw an officer pull the rifle out,
go off screen, and then come back with the bolt back. After viewing the recording, the court
held that it did not see any proof that the officers tampered with the evidence in this case.

       At the conclusion of the preliminary hearing, the trial court determined that there was
probable cause that Clark committed the offenses in this case. Clark was subsequently
indicted for vandalism of property valued at $1,000 or more but less than $10,000 and
reckless endangerment committed with a deadly weapon.

        2
         Although the State questioned Officer Keck about whether he asked Clark additional questions after
Clark informed him that he wanted to speak with an attorney, the preliminary hearing transcript indicates
only that Officer Keck’s response to that question was “inaudible.”

                                                   -6-
       Motions. Clark was represented by counsel at his arraignment on November 20,
2008. On February 4, 2009, Clark filed a motion to dismiss or, in the alternative, motion to
suppress based on the State’s failure to timely and completely file discovery materials. In
this motion, Clark complained that the State’s discovery responses had been received nearly
a month late and that the responses indicated that the red light traffic camera at issue in this
case had been repaired and reused before he had the opportunity to inspect it in violation of
Ferguson. On February 29, 2009, the trial court heard Clark’s motion to dismiss or, in the
alternative, motion to suppress and took it under advisement. On March 10, 2009, the trial
court in Division I transferred the case to Division III.

         On March 24, 2009, Clark’s attorney filed a motion to withdraw, claiming that Clark
had expressed his desire to terminate the attorney-client relationship. On March 26, 2009,
Clark filed a pro se motion for dismissal pursuant to Ferguson, despite the fact that counsel
had not been allowed to withdraw. In this motion, Clark argued for a dismissal of all of his
charges because the metal case surrounding the traffic camera and the bullets alleged to have
hit the traffic camera were missing. He argued, citing Ferguson, 2 S.W.3d at 917-18, that the
aforementioned evidence had “been altered or destroyed to the degree that forcing [him] to
trial would be fundamentally unfair as it deprives him [of] the right to obtain exculpatory
evidence[.]” On April 22, 2009, Clark’s counsel filed a supplemental motion to dismiss
alleging the same arguments that Clark made in his pro se motion to dismiss.

       On April 30, 2009, the trial court entered a written order denying Clark’s motions to
suppress and/or dismiss. The trial court summarized the evidence from the preliminary
hearing before ruling that it was denying Clark’s motion:

              The officers testified[] and stated that they were on patrol in the area of
       Broadway and I-640 when they heard shots fired. The[y] testified that they
       immediately began looking for the area from which the shots came. They were
       sure they were hearing gun fire. After hearing the third shot they stopped in
       an area they believed to be near where the shots came from and heard a fourth
       shot. They identified a closed place of business (it being 1:45 a.m.) from
       whence a silver Chrysler Minivan with a Texas Tag No. 948WGC, came from
       around a building at a high rate of speed. Not knowing where the shots had
       been directed or whether they had been directed at an individual, themselves,
       or an object, they initia[t]ed a traffic stop, [and] the vehicle was stopped at the
       corner of Greenway Drive and Broadway. When the defendant tried to exit the
       vehicle he was told to show his hands[,] and he was patted[-]down for [the]
       officers[’] safety. During the course of the “Terry” pat[-]down, the officer
       found two objects and asked what they were. The suspect answered that he did
       not know and to go ahead and look. The officer pulled out two rifle scope
       covers. The suspect appeared nervous and denied that he knew where the

                                               -7-
       covers had come from [sic]. The suspect denied having a rifle, but the officers
       then saw in plain sight a rifle bag found under a windshield shade. The
       [o]fficers then administered the defendant’s rights to him[,] and he continued
       to make statements. The officers then noticed that the red light camera had
       been shot . . . four separate times and discovered upon search of the vehicle a
       Ruger rifle with a scope and a bullet box. A spent shell casing was [found in]
       the rifle[,] and the suspect made incriminating statements after being
       Mirandized [sic]. He was then arrested.

               Mr. Clark claims that he was stopped without cause, and that he had
       gone around the side of the building to urinate[] and that he was not
       administered his rights. The defendant in his motion also claims that he asked
       for a lawyer. The “Terry” pat was clearly appropriate for the officers[’] safety
       in light of the fact that there were investigating a possible felony, were trying
       to determine whether or not they were being shot at [sic], or anyone else was
       being shot. The suspicion that the officers had at seeing the vehicle coming
       out from the area where they located the sounds of gun shots, at 1:45 a.m., and
       the subsequent stop, was totally appropriate. The officers testified credib[ly]
       about the objects they saw in the vehicle, and the behavior of Mr. Clark, the
       defendant. There may be inconsistencies between the statements that the
       officers have made, or statements in the warrant, but these inconsistencies go
       more probably to the weight of the evidence for a jury. [The officers] had
       articulable and reasonable suspicion to stop. The officers also testified
       credibly that the [Miranda] rights were administered upon the “Terry” pat[-]
       down occurring, and the scope covers being found as well as the rifle bag
       containing the rifle. Additionally, even after requesting a lawyer, according
       to the officers[’] statements, Mr. Clark continued to make somewhat
       incriminating statements. Thus[,] the motions to suppress evidence are hereby
       respectfully denied.

On May 1, 2009, the trial court in Division III noted that counsel had withdrawn his motion
to withdraw.

      On May 27, 2009, Clark filed a motion to reconsider the trial court’s denial of his
motions to suppress evidence and dismiss the indictment. In it, Clark argued:

              This Honorable Court issued a written ruling concerning previous
       motions in this matter on April 30, 2009. One of the principal facts relied
       upon by this Honorable Court in the Order was the fact that the basis for the
       search [of his vehicle occurred] when . . . Officer Cox subjected Mr. Clark to
       a safety pat[-]down and found some alleged scope covers on his person. Mr.

                                              -8-
       Clark would point out to this Honorable Court that pursuant to the discovery
       filed in the case by the State of Tennessee through the Assistant District
       Attorney . . . on January 26, 2009, no such lens covers exist in the section of
       the discovery that details documents and tangible objects. As such, Mr. Clark
       avers that since these lens covers were not properly maintained in evidence and
       [were not] properly produced for inspection in the discovery process, they
       should not be a basis for this Honorable Court to overrule the Defendant’s
       Motion to Suppress and/or Dismissal [of] the Indictment.

Clark also argued his charges should be dismissed because the traffic camera housing, which
he claimed was in the custody and control of the Knoxville Police Department, was no longer
available “for independent testing that would have an impact with regard to line of sight and
other physical and geometrical analysis of the alleged crime scene.” On July 1, 2009, the trial
court took Clark’s motions for dismissal under advisement. On July 29, 2009, Clark filed
a motion to suppress, or in the alternative, continue the trial. In this motion, Clark argued
that the official firearms report should be suppressed because the report stated that three
bullets were inside the red light traffic camera but were not identified in the report and were
not produced in discovery. In addition, Clark requested the trial court to suppress the report
or continue his trial to give Clark the opportunity to depose the State’s ballistic expert and
allow him time to retain his own ballistics expert.

      On July 30, 2009, the trial court issued a written order on Clark’s motion to reconsider
suppression and dismissal based on Ferguson and Gant. The order stated:

              In this case the defendant, by and through counsel, has moved to
       reconsider the dismissal based upon the constitutional standards arising from
       State v. Ferguson, 2 S.W.3d 917 (Tenn. Crim. App. 1999) regarding missing
       evidence and Arizona v. Gant, [129 S. Ct. 1710 (2009),] regarding [the] search
       of vehicles.

               This court has issued a written ruling considering the previous motions
       [which was entered on] April 30, 2009. This court’s opinion was based upon
       the pat-down for officer’s safety and the alleged location of scope covers
       which caused the officers to be concerned regarding the shooting incident
       which they were investigating. Subsequent, thereto, the court has received
       [the] benefit of the case of Arizona v. Gant and the video tape of the stop and
       arrest of Mr. Clark.

             For the following reasons the court reverses its decision with respect to
       the motion to suppress the evidence and dismiss.


                                              -9-
        It is clear from the credible testimony, of the officers, that they heard
shots fired and sought to determine where the shots were coming from. They
determined that the shots were coming from the back of a closed business, and
proceeded in that direction. They observed a vehicle proceeding at a relatively
high speed coming out from the private road connecting to that building and
made a U-turn and proceeded to stop the vehicle within a short distance. The
officers removed the defendant, Mr. Clifford Clark, from the vehicle almost
immediately and on the video tape which has no audio available, patted-down
and handcuffed the defendant within a few seconds.

        It is admitted by the state that the lens covers were not made a part of
the body of evidence which is discoverable in this case. The officers testified
that they took the defendant into custody and in plain view in the back of the
vehicle [was] a rifle case sticking out from under a windshield shade. The
video tape demonstrates that officers took the defendant into custody, took him
back to the rear of the camera. One officer went forward to the defendant’s
vehicle and with a flashlight, it being the early hours of the morning, looked
into the rear of the vehicle pulling out a rifle case which he laid on the hood
of the vehicle. He proceeded to open it and examine the rifle, open the other
side of the vehicle and obtain other items that were within the vehicle and
place them on the hood of the vehicle. Afterward[,] another officer came and
picked the rifle up and examined the rifle, put it back into the case, counted out
cartridges, and packed them together and carried away the rifle. At all times
the defendant was nowhere near his vehicle, or the rifle. It is also conceded
that the officers immediately took action to search the vehicle without the
benefit of any search warrant, nor was there any written consent to search. The
defendant denies giving any oral consent to search.

       Additionally, and pursuant to the motion to reconsider[,] the court
requested that the state search for the camera cover and enclosure which the
defendant is alleged to have shot in order that there be an opportunity for
requested testing. [The] state was unable to produce the evidence and the
Attorney General after inquiring has determined that some of the evidence is
gone, and that some of the evidence has apparently been recycled for use.
Thus[,] the defense contends that it cannot examine these items which were
damaged, nor do ballistics testing. It is the court[’]s opinion that the search of
the vehicle[,] in the absence of a search warrant and after the defendant had
been safely removed from access to the vehicle[,] in the rear of the car in the
dark with a flashlight violates the United States Supreme Court [c]ase Arizona
v. Gant in which the court held that Chimel v. California, 395 U.S. 752,
requiring that a search incident to arrest be justified by either the interest in

                                       -10-
        officer safety or the interest in preserving evidence applied[] and that the
        defendant in Gant[,] who neither posed any danger to officer safety nor was
        able to access the passenger compartment to harm or destroy evidence,
        invalidated a warrantless search of the motor vehicle. Additionally, State v.
        Ferguson, 2 S.W.3d 912 (Tenn. Crim. App. 1999)[,] holds that the constitution
        is violated when missing evidence has not been produced and is crucial to the
        opportunity of the defense to discover and examine such missing evidence.
        Thus[,] it is this court’s opinion that while no officer violated the law that he
        knew at that time, these two incidents combined together require that the
        evidence taken from the motor vehicle would be suppressed and the case
        should therefore be dismissed.

       On August 4, 2009, the State filed a motion to reconsider the court’s July 30, 2009
order, wherein it requested that “it be allowed to present proof in this case to clarify the
[evidence] in light of the Gant decision.”3 The State then filed its notice of appeal on August
27, 2009.4

                                                ANALYSIS

        The State contends that the trial court abused its discretion in dismissing Clark’s
indictment in light of Gant and Ferguson. “The decision whether to dismiss an indictment
lies within the discretion of the trial court.” State v. Harris, 33 S.W.3d 767, 769 (Tenn. 2000)
(citing State v. Benn, 713 S.W.2d 308, 311 (Tenn. 1986)). Consequently, “[a]ppellate courts
‘may not interfere with a ruling made within the discretionary powers of the trial court absent
clear abuse.’” Id. at 769-70 (quoting State v. Street, 768 S.W.2d 703, 709 (Tenn. Crim. App.
1988)).

       The State also argues that the trial court erred in suppressing evidence taken from
Clark’s vehicle. “[A] trial court’s findings of fact in a suppression hearing will be upheld


        3
            There is no order denying the State’s motion to reconsider in the record.
        4
          On April 29, 2010, Clark filed a “Motion for Forensic Competency Evaluation and Hearing
Regarding Indigency for Costs of Forensic Competency Evaluation” in this court. On May 12, 2010, this
court filed an order deferring its ruling on this motion and requiring the State to file a response addressing
whether there is a “constitutional or statutory requirement that a criminal defendant be competent to proceed
on appeal when represented by counsel and, if so, what the proper standard is for determining whether a
criminal defendant is competent to proceed with an appeal when represented by counsel.” The State filed
a response on June 14, 2010. On August 13, 2010, this court entered an order denying the motion for a
forensic competency evaluation at the appellate level and concluding that a “non-capital defendant’s mental
incompetence to assist his attorney in pursuing an appeal should not prohibit the appeal from continuing.”


                                                      -11-
unless the evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). However, we must review a trial court’s application of the law to the facts under a
de novo standard of review. State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006); State
v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). “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.” Odom,
928 S.W.2d at 23.

                                   I. Warrantless Search.

        The State contends that the trial court abused its discretion in dismissing Clark’s
indictment based on “perceived violations” of Arizona v. Gant, 129 S. Ct. 1710 (2009), and
State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). Interestingly, the State on appeal does not
argue that the rifle case recovered from Clark’s vehicle was in “plain view.” See Washington
v. Chrisman, 455 U.S. 5, 5-6 (1982). Instead, the State argues that the search conducted after
Clark was arrested, which resulted in the recovery of the rifle, a spent casing in the rifle, and
a box of rounds, was compliant with Gant because it was “reasonable to believe that evidence
of the offense of arrest might be found in the vehicle.” Gant, 129 S. Ct. at 1714. The State
further contends that because the trial court failed to consider this qualification to the holding
in Gant, it improperly held that Gant precluded admission of any evidence found in Clark’s
vehicle.

        In response, Clark argues that the trial court properly applied Gant to the facts of his
case before suppressing “the evidence of the illegal stop, search[,] and seizure[Clark’s brief,
9]” and dismissing his indictment. Specifically, he asserts that he was handcuffed and a good
distance away from his vehicle at the time that one of the officers discovered the rifle in his
vehicle after “rummaging around with a flashlight.” He claims that the warrantless search
of his vehicle was not justified by officer safety or the need to preserve evidence since at the
time of the search he had been restrained by handcuffs and removed from the area. He also
argues that the State misinterpreted the qualification in Gant.

        In addition, Clark claims that the officers stopped him pursuant to a traffic stop rather
than a felony stop. He asserts that because the crime of arrest was a traffic violation, the
officers were precluded from searching his vehicle without a warrant. Moreover, he claims
that “[u]nder Gant . . . , the crime of arrest must be defined prior to search, and that crime has
to be a traffic violation because Officer Cox noted a traffic stop based on excessive speed in
his report.” Clark also contends that his mere presence in the area was not sufficient to
justify the stop. Finally, Clark argues that since the lens covers were lost and the video does
not show their recovery, the lens covers cannot provide justification for the further search of
his vehicle.


                                              -12-
        Here, it is clear that Clark was properly stopped pursuant to Terry v. Ohio, 392 U.S.
1 (1968). Under Terry, an officer may stop an individual if the officer has a reasonable
suspicion that the person is currently engaging or has engaged in illegal activity. Id. at 30.
“Reasonable suspicion is a particularized and objective basis for suspecting the subject of a
stop of criminal activity, and it is determined by considering the totality of the circumstances
surrounding the stop[.]” State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (internal citations
omitted). In order to justify a stop pursuant to Terry, “the police officer must be able to point
to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21. Moreover, these facts must
be “judged against an objective standard”; that is, would a reasonable person find the
officer’s actions appropriate in light of the facts known to the officer at the time of the search
or seizure? Id. at 21-22. In this case, Clark was arrested because the officers suspected him
of firing four gunshots from the parking lot of a closed automotive repair shop. One minute
after hearing the last of four gunshots, Officer Cox saw Clark drive away at a high rate of
speed from the area behind the automotive shop. Given these facts, we conclude that Clark’s
stop was proper under Terry.

       In addition, despite the trial court’s holding that the search of Clark’s vehicle
unreasonable under the Fourth Amendment, we conclude that the warrantless search, which
resulted in the discovery of the rifle, a spent casing in the rifle, and a box of shells, was
proper based on two alternative theories: (1) the rifle case was in “plain view” at the time
of Clark’s detainment and arrest, or (2) the qualification in Gant applied to the search
incident to Clark’s arrest because it was reasonable for the officers to believe that evidence
related to the crime of arrest was present in the vehicle. “[U]nder 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 that the
search or seizure was conducted pursuant to one of the narrowly defined exceptions to the
warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997) (citing Coolidge
v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Bartram, 925 S.W.2d 227, 229-30
(Tenn. 1996)). In McMahan, this court outlined the exceptions to the warrant requirement:

       A warrantless search is per se unreasonable, unless it falls into one of the
       narrowly defined and carefully drawn exceptions to the warrant requirement,
       i.e., searches incident to a lawful arrest, those made by consent, in the “hot
       pursuit” of a fleeing criminal, “stop and frisk” searches, and those based on
       probable cause in the presence of exigent circumstances.

State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 1983) (citing State v. Shaw, 603
S.W.2d 741, 742 (Tenn. Crim. App. 1980)). In addition, “[t]he ‘plain view’ exception to the
Fourth Amendment warrant requirement permits a law enforcement officer to seize what
clearly is incriminating evidence or contraband when it is discovered in a place where the

                                              -13-
officer has a right to be.” Chrisman, 455 U.S. at 5-6 (citing Coolidge, 403 U.S. at 466;
Harris v. United States, 390 U.S. 234, 236 (1968)). The requirements for a seizure of items
in “plain view” are the following: (1) the evidence must be in plain view; (2) the officer
must not have violated the Fourth Amendment in order to arrive at the location where the
evidence can be plainly viewed; and (3) the incriminating nature of the object must be
apparent based on the viewing. Horton v. California, 496 U.S. 128, 136-37 (1990) (citations
and footnote omitted).

        At the July 1, 2009 hearing on the motion for reconsideration, the prosecutor argued
that while the first officer was conducting the Terry pat-down in which the scope lens covers
were found, the second officer had “arrived and was looking in the back of the vehicle Mr.
Clark was driving and saw the [rifle case] sticking out from underneath the windshield
cover.” He further argued that the discovery of the lens covers was not the basis of the
search which uncovered the rifle in Clark’s vehicle. The prosecutor added that the discovery
of the lens covers was the basis for the arrest, and that while the arrest was happening, the
second officer looked in the back of Clark’s vehicle and saw the rifle case in plain view. In
response, the defense argued that the absence of the scope lens covers meant that there was
no justification for the further search of Clark’s vehicle.

        The video recording of Clark’s stop shows that in addition to Officer Cox’s patrol car
headlights and light-bar illumination, there were also two streetlights in the immediate area
of Clark’s car. Moreover, Clark opened his car door when stopped, and this door was open
for the duration of his stop and arrest. Both Officer Cox and Officer Keck were present
while Clark was questioned beside his vehicle. Officer Keck testified at the preliminary
hearing that he saw the rifle case in plain view at the time that Clark was being arrested.
Because of the potential threat from Clark, Officer Keck waited until Clark was in handcuffs
and headed to the patrol car before he retrieved the rifle from Clark’s vehicle. Immediately
after Clark was led away, Officer Keck retrieved the rifle case from the vehicle. We
conclude that all of these facts, when viewed together, show that the rifle case was in “plain
view” at the time of Clark’s detainment and arrest. Accordingly, the seizure of the rifle case,
rifle, box of shells, and spent shell casing were proper under the “plain view” doctrine.

        Additionally, the plain viewing of the rifle case provided a justification for the search
of the vehicle pursuant to Gant. On April 21, 2009, the United States Supreme Court decided
Gant, in which it held the following:

               Police may search a vehicle incident to a recent occupant’s arrest only
       if the arrestee is within reaching distance of the passenger compartment at the
       time of the search or it is reasonable to believe the vehicle contains evidence
       of the offense of arrest. When these justifications are absent, a search of an


                                              -14-
       arrestee’s vehicle will be unreasonable unless police obtain a warrant or show
       that another exception to the warrant requirement applies.

129 S. Ct. at 1723-24. In reaching this holding, the Court concluded that New York v.
Belton, 453 U.S. 454 (1981), “does not authorize a vehicle search incident to a recent
occupant’s arrest after the arrestee has been secured and cannot access the interior of the
vehicle.” Gant, 129 S. Ct. at 1714. Instead, the Court concluded, pursuant to Chimel, that
police may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is
unsecured and within reaching distance of the passenger compartment at the time of the
search.” Id. at 1719. However, the Court noted an exception to this rule, holding that
“circumstances unique to the vehicle context justify a search incident to a lawful arrest when
it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the
vehicle.’” Id. (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J.,
concurring)). The court noted that in cases where there is an arrest for a traffic violation, law
enforcement will have “no reasonable basis to believe the vehicle contains relevant
evidence.” Id. (citing Atwater v. Lago Vista, 532 U.S. 318, 324 (2001); Knowles v. Iowa,
525 U.S. 113, 118 (1998)). However, in other cases, “including Belton and Thornton, the
offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s
vehicle and any containers therein.” Id.

       We agree with the State’s assertion that the exception noted in Gant applies in this
case because it was reasonable for Officers Cox and Keck to believe at the time of the search
that evidence related to the crime of arrest might be found in Clark’s vehicle. At the time
that the officers stopped Clark, they were looking for an individual responsible for firing
several gunshots from an area behind a closed automobile repair shop. One minute after
hearing the last gunshot, Officer Cox saw Clark leaving the parking lot behind the auto repair
business. After stopping Clark’s vehicle, Officer Cox conducted a Terry pat-down and
discovered two scope lens covers in Clark’s coat pocket. As Officer Cox arrested Clark and
put him in the back of a patrol car, Officer Keck saw a rifle case located under a windshield
sun shade in the backseat of Clark’s vehicle and immediately retrieved it. He opened the
case and found a high-powered rifle with a scope as well as a box of shells, with four shells
missing. A spent shell casing was subsequently found in the rifle. We conclude that both
the search of Clark’s vehicle and the seizure of the rifle, rifle case, box of shells, and the
spent shell casing inside the rifle was proper pursuant to Gant.

                             II. Lost or Destroyed Evidence.

        The State also contends that Clark failed to show that his indictment must be
dismissed pursuant to Ferguson because of the loss or destruction of the damaged red light
traffic camera, the camera housing, and the rifle scope lens covers. The State asserts that it
had no duty to preserve the camera and its exterior housing because all parts of the camera

                                              -15-
were owned by a private company known as Redflex Traffic Systems. The State further
contends that the damaged camera and its housing were not apparently exculpatory. In
response to Clark’s claim that the destruction of the camera and its housing prevented him
from determining the trajectory of the bullets, the State argues that Clark’s “rationale would
apparently require the City of Knoxville and Redflex Traffic Systems to leave the damaged
camera in place and inoperable for an open-ended length of time solely based upon the
defendant’s otherwise weak assertion of exculpatory evidence.” Moreover, the State asserts
that it retained photographs of the damaged camera and housing, which are comparable
evidence.

        In response, Clark argues that the trial court was justified in dismissing his indictment
based on the loss or destruction of the red light traffic camera and its housing which
constituted a severe violation of Ferguson. Interestingly, he equates the loss of the camera
housing to the loss of a body in a homicide case. Clark asserts that the State had control of
the camera and its housing, was aware that it was an important piece of evidence with
exculpatory value, and had a duty to retain this evidence. Moreover, because of the loss of
this evidence, Clark asserts that he was unable to conduct testing on this evidence that would
have been vital to his defense. He also argues that the photographs the State took of the
camera are not an adequate substitute for the actual camera and housing because only the
physical evidence can be tested. In addition, Clark contends that the loss of the alleged scope
lens covers was detrimental to his defense because they provided justification for the officers
to conduct the illegal warrantless search of his vehicle. Finally, he argues that because the
trial court has the discretion to determine the remedy for Ferguson violations, the trial court
in this case properly determined that the appropriate remedy was dismissal of the indictment
in light of the loss of the camera and its housing, which was the most important piece of
evidence in his case.

        At the hearing on the motion for reconsideration, the defense argued that the loss or
destruction of the camera and its housing prevented Clark from receiving a “fundamentally
fair trial” under Ferguson. The defense further argued that because the camera and its
housing were lost or destroyed, it was unable to examine whether there were bullets or bullet
fragments in the camera or its housing. The prosecutor explained that Redflex owned the
“cameras and computers” inside the camera housing, and Progression Electric owned the
camera housing and the pole that holds the camera and housing in the air. The prosecutor
said that the day after the shooting, the police made photographs of the camera and its
housing and “collected the damaged cameras and equipment that was inside that enclosure.”
Then Redflex arrived at the scene “to put up new working equipment and make [the traffic
cameras] work again.” Finally, Progression Electric arrived at the scene “because their
enclosure had bullet holes in it and, therefore, was not usable anymore[,]” and they installed
a new enclosure. He added, “I would have loved it if [the police department] had taken the
old [camera enclosure], but they didn’t[.]” Instead, “Progression Electric took [the camera

                                              -16-
enclosure] home with them” where it was later “disposed of.” The prosecutor then informed
the court that although the exterior camera enclosure or housing was never in State custody,
the State did take “photographs of it, where the bullet holes are and how they’re positioned
and the equipment that was inside of it.” The defense then likened the camera housing to an
onion and argued that the camera housing was essential because the bullets hit the housing
first before damaging the equipment inside the housing. The prosecutor responded that the
police had collected and retained in the property room “the cameras that were struck by the
bullets [and] I believe [the] computer equipment involved [with the cameras].” However, the
prosecutor admitted that the equipment that was not damaged by the bullets may have been
reused. The prosecutor did not specify the items of undamaged equipment that were reused.

        Initially, we note that the information in the record regarding the existence of the
traffic camera equipment is extremely unclear. We do know that the metal exterior housing
of the camera was not retained by police and was later “disposed of” by Progression Electric,
although photographs of this housing were retained. Although the State claims that the
cameras inside the housing were retained in the property room and the computer equipment
inside the metal housing was possibly retained in the property room, certain unspecified
equipment from the traffic camera that was not damaged was not retained because it was
recycled for later use. Accordingly, we have no information as to what equipment parts
related to the traffic camera were actually retained for use in this case and no information as
to the condition of the retained equipment or its amenability for testing. The State does not
explain whether bullets or bullet fragments were found in the retained equipment, and no
testing results for the retained evidence appear in the record on appeal. Unfortunately, the
record shows that the trial court did not inquire as to the existence or condition of this
retained equipment or the results of any testing of this equipment. Regarding the scope lens
covers, the prosecutor stated only that the lens covers for the rifle scope “obviously did not
get confiscated when the gun was confiscated . . . so we don’t know where they went[.]”

        State v. Ferguson governs claims regarding the State’s duty to preserve potentially
exculpatory evidence. 2 S.W.3d 912 (Tenn. 1999). Under Ferguson, the primary inquiry is
“[w]hether a trial, conducted without the destroyed evidence, would be fundamentally fair[.]”
Id. at 914. First, we must consider whether the State had a duty to preserve the evidence in
issue. Id. at 917. “Generally speaking, the State has a duty to preserve all evidence subject
to discovery and inspection under Tennessee Rule of Criminal Procedure 16, or other
applicable law.” Id. (footnote omitted). The analysis under Ferguson is only triggered,
however, if the alleged exculpatory evidence is determined to be material:

       Whatever duty the Constitution imposes on the States to preserve evidence,
       that duty must be limited to evidence that might be expected to play a
       significant role in the suspect’s defense. To meet this standard of
       constitutional materiality, evidence must both possess an exculpatory value

                                             -17-
       that was apparent before the evidence was destroyed, and be of such a nature
       that the defendant would be unable to obtain comparable evidence by other
       reasonably available means.

Id. (quoting California v. Trombetta, 467 U.S. 479, 488–89 (1984)).

        Once the court determines that the State had a duty to preserve material evidence and
failed in that duty, Ferguson requires the trial court to consider the following factors which
bear upon the consequences of the State’s breach of its duty:

       1.     The degree of negligence involved;

       2.     The significance of the destroyed evidence, considered in light of the
              probative value and reliability of secondary or substitute evidence that
              remains available; and

       3.     The sufficiency of the other evidence used at trial to support the
              conviction.

Id. (internal footnote omitted). A trial court may dismiss the indictment against the defendant
if it determines that “a trial without the missing evidence would not be fundamentally fair.”
Id. However, a trial court may also enter orders that protect the defendant’s right to a fair
trial or may issue a jury instruction.

                          A. State’s Duty to Preserve Evidence

                     1. Tennesseee Rule of Criminal Procedure 16.

        In determining whether the State has a duty to preserve evidence, we must first
consider whether the defendant would be entitled to receive the particular pieces of evidence
in discovery. Ferguson, 2 S.W.3d at 917. Tennessee Criminal Procedure Rule 16(a)(1)(F)
allows the defendant to inspect tangible objects “within the state’s possession, custody, or
control” that are material to preparing the defense, that the State intends to use in its
case-in-chief at trial, or that were obtained from or belonged to the defendant. Here, the
photographs of the camera housing are discoverable pursuant to Rule 16(a)(1)(F) because the
State intended to present the photographs of the housing as evidence at trial. Although not
specifically asserted by the State, we must also assume that the State intended to present the
retained equipment inside the camera housing at trial; therefore, it is also discoverable. We
also conclude that the scope lens covers are discoverable because they were taken from
Clark.


                                             -18-
                             2. Apparent Exculpatory Value

        We must next determine whether the evidence in issue has exculpatory value that was
apparent before the evidence in question was destroyed. Id. The State argues that the camera
and its housing were not apparently exculpatory because (1) the camera and its housing were
shot by four bullets, with one bullet traveling in and out of the camera housing; (2) three
bullet casings were found in the parking lot from which Clark was leaving when he was first
seen by Officer Cox; and (3) a fourth bullet casing was found in the rifle recovered from
Clark’s vehicle. The State also argues that the camera and its housing were not apparently
exculpatory because this evidence would not provide proof of the bullets trajectory since the
trajectory could only be obtained if the damaged camera and casing were left in place for an
undefined period of time for Clark’s inspection. Finally, the State contends that the scope
lens covers were not apparently exculpatory because the lens covers matched the scope on
the rifle found in Clark’s vehicle.

        Clark argues that the camera and its housing were apparently exculpatory because they
would have enabled him to prove the origin of the bullets, to test whether bullets from his
rifle had enough force to penetrate the camera’s housing, to test whether the entry and exit
holes were consistent with the “caliber of weapon” seized from his vehicle, and to test
whether “the angle of deflection in any of the alleged entry or exit holes on the camera cover
or housing [were] consistent or inconsistent with regard to the Pittman Automotive location
[where Officer Cox saw Clark exit just prior to stopping him].” Clark also argues that the
scope lens covers were apparently exculpatory because they could have been subject to
“scientific and expert analysis for exculpatory purposes[.]”

       In the July 30, 2009 order, the trial court noted that the scope lens covers were “not
made a part of the body of evidence which is discoverable in this case.” It further noted
Clark’s argument that the missing camera and its housing precluded him from examining
them and prevented him from doing ballistics testing. Without specifically making a ruling
regarding the apparent exculpatory nature of the camera, the camera housing, and the scope
lens covers, the trial court alluded to the fact that the missing lens covers and the traffic
camera and its housing were crucial to Clark’s defense before dismissing the indictment.

       Upon review, we conclude that the damaged camera and its housing had exculpatory
potential because they would have enabled the defense to conduct ballistics and trajectory
testing. However, we agree with the State that the scope lens covers did not have apparent
exculpatory value since the covers matched the scope on the rifle found in Clark’s vehicle.

                      3. Availability of the Comparative Evidence




                                             -19-
        Next, we must determine whether the defendant is unable to obtain comparable
evidence through other reasonably available means. Id. The State argues that comparable
evidence of the camera and its housing was available to Clark since photographs of the
camera housing were taken by the State. In response, Clark contends that the photographs
are not comparable evidence because they cannot be tested. The State also argues that there
is comparable evidence of the scope lens covers because Officers Cox and Keck are available
to testify about their discovery of the lens covers in this case, and they would be subject to
cross-examination. Clark responds that no comparable evidence is available for the scope
lens covers since they were never retained by the State. Interestingly, the trial court makes
no mention of the availability of comparable evidence for either the camera and housing or
the scope lens covers in its July 30, 2009 order. Upon review, we conclude that the
photographs of the camera housing do not constitute available comparable evidence because
they cannot be tested. We acknowledge that no comparable evidence exists for the scope
lens covers.

       Ultimately, after considering these three factors, we conclude that the State had a duty
to preserve the camera and its housing but not the missing scope lens covers. While all of
this evidence was discoverable, only the camera and its housing had exculpatory potential
and were of such a nature that the lack of comparable evidence was significant. In light of
our previous determination that the plain viewing of the rifle case provided the basis for the
search of Clark’s vehicle, we conclude that the absence of comparable evidence for the scope
lens covers is not particularly significant. Accordingly, we must now consider the
consequences of the State’s breach of its duty to preserve the camera and its housing.

       B. Consequences of the State’s Breach of its Duty to Preserve Evidence

        The State maintains that it had no duty to preserve the camera and its housing.
However, it argues that even if it did breach its duty based on some negligence, it contends
that there was no violation because (1) the evidence was not significant because of its lack
of probative value and because of the reliability of secondary or substitute evidence that
remains available, and (2) other evidence was sufficient to support Clark’s convictions. In
order to determine the consequences of the State’s failure to preserve the camera and its
housing, we must consider the negligence of the State, the significance of the destroyed or
lost evidence, and the sufficiency of the other evidence used at trial. Id.

                                1. Negligence of the State

      In determining the State’s “degree of negligence,” we first note that the trial court
does not specifically address the negligence of the State regarding the missing pieces of
evidence in its July 30, 2009 order. Id. However, the record does show that the State
inadvertently allowed Progression Electric to “dispose of” the camera housing and allowed

                                             -20-
non-damaged portions of the camera equipment to be reused. Nothing in the record reveals
that the police department had any established policy regarding the retention of damaged
traffic cameras for the purpose of criminal prosecution. See State v. Lonnie T. Lawrence,
No. E2007-00114-CCA-R9-CD, 2008 WL 704355, at *14 (Tenn. Crim. App., at Knoxville,
Mar. 17, 2008) (distinguishing between simple negligence and gross negligence under
Ferguson). Clearly, the State did not intend to destroy the camera or its housing to the
detriment of Clark. Although the police were negligent in allowing Progression Electric and
possibly Redflex to take portions of the camera equipment, we must conclude that this was
simple negligence rather than gross negligence.

                       2. Significance of the Destroyed Evidence

        We must next determine “[t]he significance of destroyed evidence considered in light
of the probative value and reliability of secondary or substitute evidence that remains
available.” Ferguson, 2 S.W.3d at 917. The State argues that Clark has failed to show a
Ferguson violation based on this factor but does not specifically explain how the lost or
destroyed evidence lacks probative value or how the reliability of the secondary or substitute
evidence makes the missing evidence insignificant. As mentioned above, the State generally
asserts that the camera and housing were not apparently exculpatory and that the photographs
of the camera housing constitutes available comparative evidence. Clark argues that the
damaged camera and its housing have probative value because they are needed for ballistics
testing and that the photographs of the camera housing are not a substitute for the missing
evidence because they cannot be tested.

        As mentioned above, the photographs of the camera housing are not substitute
evidence because the significance of the evidence stems from its ability to be tested. See
State v. Lonnie T. Lawrence, No. E2007-00114-CCA-R9-CD, 2008 WL 704355, at *15
(Tenn. Crim. App., at Knoxville, Mar. 17, 2008) (holding that the trial court did not err in
suppressing certain photographs of this evidence since the balance of the factors in Ferguson
tipped in favor of the defendant, especially given the significance of testing the destroyed
physical evidence for fingerprints). We do not know what Clark’s testing of the damaged
camera and its housing would have revealed; however, we conclude that the ability to test
this evidence was significant to Clark’s defense.

                     3. Sufficiency of Other Evidence to Convict

        Finally, we must consider “[t]he sufficiency of the other evidence used at trial to
support the conviction.” Ferguson, 2 S.W.3d at 917. Here, Clark’s indictment was dismissed
prior to trial. However, we do have the benefit of the police report, the testimony of the
officers at the preliminary hearing, and the video recording of Clark’s stop, arrest, and
search, all of which constitute strong evidence against Clark. Officers Cox and Keck

                                             -21-
testified that they heard four shots fired from behind the automotive repair shop. As they
approached the shop, they saw Clark drive out from behind the shop at a fast speed. At the
time of the stop, Clark made incriminating statements. Officer Cox discovered the scope lens
covers in his pocket, and Officer Keck observed the rifle case in the backseat of Clark’s
vehicle. In addition to recovering the rifle, the officers also recovered a box of rifle rounds
with four bullets missing. Three spent shell casings were found in the parking lot behind the
repair shop, and one spent shell casing was found in the rifle.

       Upon review, we conclude that these factors weigh in favor of Clark’s receiving some
remedy for the Ferguson violation associated with the damaged camera and its housing.
However, we conclude that the trial court erred in determining that the proper remedy for this
violation was to dismiss Clark’s indictment. Accordingly, we reverse the trial court’s
judgment dismissing the indictment and suppressing the evidence found in Clark’s vehicle.
Instead, we conclude that the appropriate remedy is to suppress the photographic evidence
of the camera housing since this evidence cannot be tested.

                                      CONCLUSION

        Upon review, we conclude that the trial court’s order dismissing the indictment and
suppressing the evidence found in Clark’s vehicle is reversed. We reinstate Clark’s
indictment, suppress the photographic evidence of the camera housing, and remand the case
for trial.

                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




                                             -22-
