        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 May 10, 2016 Session

               STATE OF TENNESSEE v. FREDDIE ALI BELL

                  Appeal from the Circuit Court for Maury County
                       No. 24211     Robert L. Jones, Judge




                 No. M2015-01999-CCA-R3-CD – Filed July 25, 2016
                        _____________________________

In conjunction with the entry of a nolo contendere plea to driving under the influence
(“DUI”), Defendant, Freddie Ali Bell, reserved a certified question for appeal pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2)(A) in which he asked this Court to
determine whether the record supports the finding of probable cause or reasonable
suspicion to legally permit a seizure of Defendant and his vehicle. After a review, we
determine that the evidence supports a finding of probable cause for the stop.
Consequently, the trial court‟s denial of the motion to suppress is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Claudia Jack, District Public Defender; Robin E. Farber, Assistant District Public
Defender (at suppression hearing and on appeal); and Brandon E. White (on appeal),
Columbia, Tennessee, for the appellant, Freddie Ali Bell.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Brent Cooper, District Attorney General; and Adam Davis, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION

                                  Factual Background
       Trooper Michael Kilpatrick stopped Defendant on State Route 50 in Maury
County on February 16, 2014, at approximately 2:51 a.m. Defendant was subsequently
indicted in May of 2015 for one count of driving under the influence, one count of
reckless driving, and one count of violation of the seatbelt law. Defendant filed a motion
to suppress the evidence on the basis that there was no probable cause, reasonable
suspicion, or other legal justification for the stop and search.

        At the hearing on the motion, Trooper Kilpatrick testified that he was driving west
on State Route 50 near the Interstate 65 intersection in Maury County. Trooper
Kilpatrick was following a line of about four vehicles. Defendant‟s vehicle was
immediately in front of Trooper Kilpatrick. He noticed Defendant‟s vehicle go “over on
the white fog line and end[] up driving on that white fog line [and] crossing over it.”
Defendant‟s vehicle came “back in his lane and then [after] just a very short . . . distance,
it . . . went across the double yellow lines” as the vehicle crossed a bridge. Trooper
Kilpatrick described the tires as being “clearly” on the left yellow line, meaning the
driver‟s side of Defendant‟s vehicle was “in the other lane.” Trooper Kilpatrick admitted
that Defendant‟s “car was never fully into the eastbound lane.”

        At that time, Trooper Kilpatrick thought that it was possible that Defendant was
impaired, especially because he was aware that there is a “bar that . . . closes around 3:00
a.m. [nearby].” He initiated a traffic stop by activating his blue lights because “it was
reckless for [Defendant] to drive into the other the lane of traffic.” Defendant was asked
to exit the vehicle and was ultimately arrested for DUI.

       In addition to Trooper Kilpatrick‟s testimony, the State introduced a video taken
from the trooper‟s dash cam.

       At the conclusion of the hearing, the trial court found the seizure “reasonable” and
denied the motion. Subsequently, Defendant pled guilty to DUI and reserved a certified
question for appeal. The reckless driving and violation of the seatbelt law charges were
dismissed. The following certified question was reserved for appeal: “[w]hether the
record supports the finding of probable cause or reasonable suspicion to legally permit a
seizure of the defendant and his vehicle.”

                                          Analysis

       Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure provides that an
appeal lies from any judgment of conviction upon a plea of guilty or nolo contendere if:

       (A) [T]he defendant entered into a plea agreement under Rule 11(c) but
       explicitly reserved—with the consent of the state and of the court—the

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       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[.]

Tenn. R. Crim. P. 37(b)(2)(A).

       Although the parties agreed that Defendant‟s certified question of law regarding
the legality of his traffic stop was dispositive of the case, we are not bound by that
determination. See State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003).
Instead, we “must make an independent determination that the certified question is
dispositive.” State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007) (citation omitted). “An
issue is dispositive when this Court must either affirm the judgment or reverse and
dismiss.” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).

        Our courts have explicitly addressed Rule 37(b)(2)(A)(ii), which requires that “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.” The parameters of the
rule define an appellate court‟s consideration of the merits of a question of law certified
pursuant to Rule 37(b)(2):

       Regardless of what has appeared in prior petitions, orders, colloquy in open
       court or otherwise, the final order or judgment from which the time begins
       to run to pursue a [Tennessee Rule of Appellate Procedure] 3 appeal must
       contain a statement of the dispositive certified question of law reserved by
       defendant for appellate review and the question of law must be stated so as
       to clearly identify the scope and the limits of the legal issue reserved. For
       example, where questions of law involve the validity of searches and the
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      admissibility of statements and confessions, etc., the reasons relied upon by
      defendant in the trial court at the suppression hearing must be identified in
      the statement of the certified question of law and review by the appellate
      courts will be limited to those passed upon by the trial judge and stated in
      the certified question, absent a constitutional requirement otherwise.
      Without an explicit statement of the certified question, neither the
      defendant, the State, nor the trial judge can make a meaningful
      determination of whether the issue sought to be reviewed is dispositive of
      the case.

State v. Bowery, 189 S.W.3d 240, 245 (Tenn. Crim. App. 2004) (internal quotation marks
omitted) (quoting State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988)). The Preston
requirements are mandatory. Id. at 245-46 (citing State v. Pendergrass, 937 S.W.2d 834,
837 (Tenn. 1996)). The burden of “reserving, articulating, and identifying the issue”
rests solely on the defendant. Pendergrass, 937 S.W.2d at 838. Failure to comply with
the requirements results in a dismissal of the appeal. Bowery, 189 S.W.3d at 245-46
(citing Pendergrass, 937 S.W.2d at 837). Our supreme court has rejected a rule of
substantial compliance and required strict compliance with Preston. State v. Armstrong,
126 S.W.3d 908, 912 (Tenn. 2003) (citations omitted).

        The certified question presented in the order accompanying the judgment form is
as follows: “Whether the record supports the finding of probable cause or reasonable
suspicion to legally permit a seizure of the defendant and his vehicle.” The order
accompanying the certified question also delineates the facts underlying the traffic stop
and subsequent arrest. The question itself does not. We note Defendant‟s certified
question would have benefitted from the incorporation of more fact-specific references,
however we hold that the substance of the question nevertheless satisfies our
jurisdictional requirements and that the issue of whether the State had probable cause or
reasonable suspicion for the stop is properly before this Court. State v. Springer, 406
S.W.3d 526, 531 (Tenn. 2013); cf. State v. Adam George Colzie, No. M1998-00253-
CCA-R3-CD, 1999 WL 1074111, at *3 (Tenn. Crim. App. Nov. 30, 1999) (holding that a
certified question was sufficient when it was “evident that [the] statement of the issue
[reflected] the grounds for suppression that Defendant asserted at the trial court,” even
though it could have been more precisely drafted); State v. Harris, 919 S.W.2d 619, 621
(Tenn. Crim. App. 1995) (holding that even though “[t]he issue is not framed according
to what might be referred to as standard „law-school‟ format,” Preston only requires that
a certified question “clearly identify the scope and limits of the legal issues reserved”).
We determine that the certified question presented in this case is dispositive because the
only evidence in “the record” of Defendant‟s intoxication was the videotape of
Defendant‟s driving and the testimony of Trooper Kilpatrick. Absent the evidence
contained in the video and accompanying observations of the officer, reasonable

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suspicion or probable cause would not have existed to support the traffic stop. Therefore,
we determine the certified question identifies the scope and limits of the issue reserved.

        We will uphold a trial court‟s findings of fact at a suppression hearing unless the
evidence preponderates to the contrary. 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. “We afford to the party prevailing in the trial court the strongest legitimate
view of the evidence and all reasonable and legitimate inferences that may be drawn from
that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998). As to the trial court‟s
application of the law to the facts, however, we apply a de novo standard of review. Id.

       Both the Fourth Amendment to the United States Constitution and Article I,
section 7 of the Tennessee Constitution guarantee the right to be free from unreasonable
searches and seizures. Tennessee‟s constitutional protections regarding searches and
seizures are identical in intent and purpose to those in the federal constitution. State v.
Turner, 297 S.W.3d 155, 165 (Tenn. 2009).

       In evaluating the constitutionality of warrantless searches, this Court must
“evaluate the search or seizure under traditional standards of reasonableness” by
balancing an individual‟s privacy interests against legitimate governmental interests.1
Wyoming v. Houghton, 526 U.S. 295, 300 (1999). “[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, 630 (Tenn. 1997). Some of these recognized exceptions
include search incident to arrest, plain view, exigent circumstances, and consent. State v.
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (citing State v. Cox, 171 S.W.3d 174, 179
(Tenn. 2005)). The State has the burden to demonstrate, by a preponderance of the
evidence, that a warrantless search passes constitutional muster. State v. Harris, 280
S.W.3d 832, 839 (Tenn. Crim. App. 2008).

        In this case, Defendant insists that the “dashcam footage” does not support a
finding of probable cause or reasonable suspicion to stop Defendant‟s vehicle. Recently,
in two separate decisions filed on the same day, the supreme court examined two separate
traffic stops to determine whether the factual scenarios presented probable cause and/or
reasonable suspicion necessary to justify the stops. State v. Davis, 484 S.W.3d 138, 142
(Tenn. 2016); State v. Smith, 484 S.W.3d 393, (Tenn. 2016). In Davis, the arresting

        1
         We note that the State has a legitimate, substantial, and compelling interest in preventing drunk
driving. See State v. James Dean Wells, No. M2013-01145-CCA-R9-CD, 2014 WL 4977356, at *13
(Tenn. Crim. App. Oct. 6, 2014), no perm. app. filed.
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officer witnessed the defendant cross the double yellow center lane lines with the two left
wheels of the defendant‟s car in violation of Tennessee Code Annotated section 55-8-
115.2 The officer initiated the stop after concluding that none of the exceptions set forth
in the statute applied to the defendant. The defendant was arrested for DUI, pled guilty,
and reserved a certified question for review on direct appeal. Id. at 142. This Court
affirmed, finding that the trial court had both reasonable suspicion and probable cause for
the arrest. On appeal to the supreme court, the court interpreted Tennessee Code
Annotated section 55-8-115 as

       an offense that is committed upon a vehicle crossing the center lane line(s)
       of a roadway on even one occasion when none of the four delineated
       exceptions applies. Therefore, a police officer who observes a motorist
       violating Section 115 will have probable cause to turn on his blue lights and
       stop the motorist.

Id. at 147 (footnotes omitted). In Davis, the proof showed that the two left wheels of the
car driven by the defendant crossed the double yellow center line, giving the officer
probable cause to initiate a traffic stop. Id. at 149.

        In Smith, the traffic stop was initiated after an officer observed the defendant
“once cross and twice touch the fog line marking the outer right lane boundary on an
interstate highway.” Id. at 398. The defendant was eventually charged with DUI and
filed a motion to suppress. The trial court denied the motion. The defendant pled guilty
and reserved a certified question of law. On appeal, this Court affirmed the trial court‟s
judgment on the merits. Id. at 399. Defendant appealed to the supreme court. The statue
at issue in Smith, Tennessee Code Annotated section 55-8-123, requires a vehicle to be
driven “as nearly as practicable entirely within a single lane and shall not be moved from
that lane until the driver has first ascertained that the movement can be made with
safety.” The court concluded:

       [W]hen an officer observes a motorist crossing a clearly marked fog line,
       the totality of the circumstances may provide a reasonable suspicion
       sufficient to initiate a traffic stop to investigate the possible violation of
       Section 123(1). If the officer observes circumstances rendering it
       practicable for the motorist to remain in her lane of travel, that observation
       will weigh in favor of reasonable suspicion. Similarly, if the officer
       observes that the motorist‟s crossing of the fog line in some specific regard
       was unsafe, indicating that the driver failed to first ascertain the safety of
       the lane excursion, that observation will weigh in favor of reasonable

       2
          Tennessee Code Annotated section 55-8-115 provides that “[u]pon all roadways of sufficient
width, a vehicle shall be driven upon the right half of the roadway,” except in certain circumstances.
                                                      -6-
       suspicion. In all events, however, a trial court considering the legality of a
       stop made pursuant to Section 123(1) must consider all of the relevant
       circumstances in deciding whether the motorist‟s lane excursion gave the
       officer a constitutionally sufficient basis to at least suspect that the motorist
       was violating Section 123(1).

Id. at 410-11. In other words, “seizure of a motorist for a suspected violation of Section
123(1) must be supported, at a minimum, by a reasonable suspicion, based on all of the
relevant circumstances, that the driver left her lane of travel when it was practicable to
remain there and/or left her lane of travel without first ascertaining that it was safe to do
so.” Id. at 411.

       Distinguishing the facts in Smith from Davis, the court noted that determining
whether a driver violated the traffic statute at issue in Davis merely required “simple
observation” to determine if a driver crossed the yellow center line, Id. at 402, while
determining whether a driver violated the traffic statute at issue in Smith could not be
determined except upon further investigation. The court in Smith analyzed the stop “from
the position of a reasonable officer, the circumstances indicative of whether the driving
conditions facing the Defendant allowed her to remain entirely in her lane „as nearly as
practicable.‟” Id. at 413. The court concluded that “the totality of the circumstances”
surrounding the stop established a reasonable suspicion that the defendant violated
Section 123(1) when she crossed the fog line and failed to remain entirely within her lane
of travel, providing justification for the stop enabling the officer to further investigate the
reason for leaving the lane of travel. Id. at 414.

        Looking at the scenario presented herein with Smith and Davis in mind, Trooper
Kilpatrick testified that he observed Defendant‟s vehicle drive over the fog line on the
right side of his lane of traffic before the vehicle corrected and “crosse[d] the double
yellow [lines].” Our review of the videotape shows the vehicle crossing the fog line in a
curve and, at the very least, the two left tires touching the outside edge of the double
yellow line on a bridge. It was late at night and the weather appeared clear. The officer
testified that the “[driver‟s side] tires were clearly” on the “left” of the two yellow lines,
putting Defendant‟s “mirror and the rest of the side of the car across the line.” We
surmise that when Trooper Kilpatrick saw Defendant‟s vehicle cross or touch the fog
line, as in Smith, it is not clear that the officer had reasonable suspicion to effectuate a
traffic stop. However, it is unnecessary for this Court to examine the totality of the
circumstances surrounding that incident because Trooper Kilpatrick based the stop on
Defendant‟s vehicle crossing the yellow line. The videotape of the stop confirms that
Defendant‟s left tires were touching and/or crossing the far left yellow line into the
oncoming lane of traffic. Simple observation of a one-time violation of the bright-line
rule explained in Davis is precisely what the officer needed to establish probable cause

                                              -7-
for the stop herein. See 484 S.W.3d at 149. Consequently, the denial of the motion to
suppress is affirmed.

                                       Conclusion

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

                                                 _________________________________
                                                 TIMOTHY L. EASTER, JUDGE




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