        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   July 10, 2012 Session

                STATE OF TENNESSEE v. CHARLES GEPHART

                  Appeal from the Criminal Court for Shelby County
                   No. 11-00498   Carolyn Wade Blackett, Judge


                No. W2011-02225-CCA-R3-CD - Filed January 16, 2013


        The defendant pled guilty to one count of driving under the influence (first offense),
a Class A misdemeanor, while reserving a certified question of law concerning the legality
of the traffic stop that led to his arrest. The defendant was sentenced to eleven months and
twenty-nine days, and permitted to serve all but two days of this sentence on probation. On
appeal, the defendant claims that the trial court erred by denying his motion to suppress,
claiming that the State failed to prove that the police officer initiating the traffic stop had a
reasonable suspicion that the defendant had committed or was about to commit an offense.
After carefully reviewing the record and the arguments of the parties, we conclude that the
certified question reserved by the defendant did not clearly outline the scope and limits of the
question presented as required by existing precedent. We dismiss the appeal accordingly.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.

Terry D. Smart and N. Craig Brigtsen, III, Memphis, Tennessee, for the appellant, Charles
Gephart.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Charles Bell, Assistant District Attorney General,
for the appellee, State of Tennessee.


                                          OPINION
                       FACTS AND PROCEDURAL HISTORY


       On February 1, 2011, the defendant, Charles Gephart, was indicted on one count of
driving under the influence in violation of Tennessee Code Annotated section 55-10-401, a
Class A misdemeanor, one count of violation of implied consent in violation of Tennessee
Code Annotated section 55-10-406, a Class A misdemeanor, and one count of reckless
driving in violation of Tennessee Code Annotated section 55-10-205, a Class B
misdemeanor. The defendant filed a pretrial motion to suppress any and all evidence
obtained as a result of his stop by police. The trial court held a hearing concerning this
motion on May 24, 2011, at which the only witness was the defendant’s arresting officer.

       Lieutenant Keith Watson of the Memphis Police Department testified that he had
nineteen years of experience in law enforcement. He testified that during the early morning
hours of April 17, 2010, he was generally patrolling an area that included a nightclub called
“Senses” when he was instructed by dispatch to travel to that location to investigate a
suspicious person. Officer Watson testified that he was aware that there had been previous
reports of car thefts, robberies, and attempted rapes in the club’s parking lot and the
surrounding area.

        Officer Watson testified that he attempted to approach “Senses” from the rear of the
establishment. Officer Watson testified that as he pulled into the club’s parking lot, he saw
a vehicle being driven by the defendant (whom he identified in open court) blocking the path
to the club’s back entrance. Officer Watson testified that the defendant was talking with
some individuals who were traveling from the parking lot to the club. Officer Watson
testified that he turned on his lights and siren in an effort to get the defendant to move his
vehicle. Officer Watson testified that in response, the defendant “took off.” When asked to
elaborate on what he meant by “took off,” Officer Watson explained:

       Pulling from the private lot onto a one way street, being that Walnut Grove
       section that’s going to turn into Union Avenue after several overpasses and
       mergers, he left the lot in an abrupt manner. He didn’t brake. He just entered
       the traffic. One entering the lane of traffic or the direction of travel that he
       chose, there’s a curve several feet from where he entered and this curve is
       divided into a left and right, which will be a south – a north and south lane,
       and he didn’t have a defined path and he rode the center of it into the curve.


Officer Watson initially estimated that the defendant traveled down the center of the road for
approximately twenty-five feet, at which time he proceeded to stop him.

                                             -2-
        On cross-examination, Officer Watson testified that he was not sure of the precise
distance that the defendant had traveled down the middle of the street, but he testified that
it may have been more than twenty-five feet and it was less than one hundred yards. Officer
Watson testified that the defendant did not yield to oncoming traffic when he left the club’s
parking lot. Officer Watson later acknowledged that he could not remember whether he had
seen any oncoming traffic in that area that evening. Officer Watson testified that the
particular section of road on which the defendant had chosen to drive down the middle
contained two lanes and was marked “[o]ne way with a solid yellow line that says do not
cross.”

        After receiving this evidence, the trial court took the issue under advisement. The
court later denied the defendant’s motion on June 22, 2011. The trial court found as a matter
of fact that the defendant drove down the center line of the street (as opposed to in his
designated lane) for at least twenty-five feet. The trial court determined that traffic on the
street onto which the defendant had just turned was minimal and that nothing prevented the
defendant from traveling in his proper lane. The trial court then ruled that Officer Watson’s
act of witnessing this minor traffic violation provided him with the reasonable suspicion
necessary to stop the defendant’s vehicle for further investigation.

       On June 27, 2011, the defendant filed a motion for interlocutory appeal pursuant to
Tennessee Rule of Appellate Procedure 9, which was granted by the trial court on July 21,
2011. On September 15, 2011, this court denied the defendant’s application for interlocutory
appeal, noting that “[i]nterlocutory appeals to review pretrial orders are generally
disfavored.” This court further observed that Rule 9 is intended to “provide[] an avenue for
immediate, interlocutory review [only of] those narrow set of issues that may otherwise be
lost before final judgment,” before ultimately concluding that “there are no issues [in the
defendant’s application] which require our immediate review.”

        On October 11, 2011, the defendant entered a conditional guilty plea to driving under
the influence (first offense), and the remaining charges against him were dropped as nolle
prosequi. The defendant was sentenced to eleven months and twenty-nine days, split two
days confinement with the balance to be served on probation. The defendant filed a timely
notice of appeal of his certified question of law. We proceed to review his appeal.

                                        ANALYSIS

       The defendant’s certified question¯as preserved in a consent order incorporated by
the judgment of the trial court¯reads in full:

       Did the State of Tennessee meet its burden and establish the lawfulness /

                                             -3-
       reasonable suspicion under the 4th Amendment to the United States
       Constitution and Article I, Section 7 of the Tennessee Constitution of the
       warrant less traffic stop / seizure of the defendant?

However, we cannot proceed to address this question on the merits because, after review, we
have concluded that the question as phrased did not clearly outline its scope and limits and
is insufficiently specific to satisfy the stringent requirements for preserving a certified
question set forth in State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988).

       The requirements for properly preserving a certified question have been “strictly
construed” by our supreme court, and “the burden is on the defendant to see that these
prerequisites are [met].” State v. Armstrong, 126 S.W.3d 908, 910 (Tenn. 2003). As our
supreme court has explained:

       [W]here questions of law involve the validity of searches and the 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. Most of the reported and unreported cases seeking the
       limited appellate review pursuant to Tenn. R. Crim. P. 37 have been dismissed
       because the certified question was not dispositive.


Preston, 759 S.W.2d at 650.

       The certified question before us deals with the validity of a seizure. However,
contrary to Preston, the reasons relied upon by the defendant at the suppression hearing have
not been identified in the question itself. The record reflects that the defendant argued in the
court below that he committed no traffic violation prior to his seizure by police; that “you
may straddle a lane or you may cross over a center line does (sic) not amount to reasonable
suspicion.” The defendant further argued in the court below that the relevant traffic statute,
Tennessee Code Annotated section 55-8-123(1), requires only that “a vehicle should be
driven as nearly as practical entirely within a single lane” and that “weaving or swerving
does not violate that statute.” These and similar assertions represent the entirety of the
defendant’s argument concerning the State’s failure to prove reasonable suspicion in the
court below, yet the certified question preserved by the defendant fails to detail the

                                              -4-
defendant’s driving conduct prior to the stop or to identify any of his arguments concerning
the applicability of the specific traffic law that was discussed by the parties in the court
below. Tennessee Code Annotated section 55-8-123 is not so much as mentioned in the
certified question. Consequently, the defendant has failed to explicitly state the certified
question at the level of detail required by Preston.

       As our supreme court explained in the Preston decision itself, the explicit statement
requirement is necessary to allow this court to “make a meaningful determination of whether
the issue sought to be reviewed is dispositive of the case.” Preston, 759 S.W.2d at 650.
Because the certified question as posed is far too general and vague overall and lacks the
arguments relied on by the defendant in the court below, we cannot engage in a meaningful
determination of whether our answer to the certified question would be dispositive of the
case. We have some reason to entertain doubts on the issue.

        Even if this court accepted the defendant’s arguments advanced in the court below
concerning the proper interpretation of section 55-8-123(1) in relation to the defendant’s act
of driving down the center of the street prior to his being stopped, there are other grounds on
which this court might nonetheless uphold the trial court’s conclusion that Officer Watson
possessed the reasonable suspicion necessary to conduct a warrantless stop. The defendant
advanced no argument in the court below concerning his alleged failure to yield to oncoming
traffic as he left the club parking lot, prior to his straddling of the center lane of the following
street. This additional traffic violation was attested to by Officer Watson at the suppression
hearing and was expressly referenced by the trial court in its written order denying the
defendant’s motion to suppress. Standing alone, the officer’s act of witnessing the
defendant’s failure to yield might have served to provide the reasonable suspicion necessary
to justify the traffic stop at issue under the federal and state constitutions, even if this court
were to rule that the defendant was correct that no violation of section 55-8-123(1) had
occurred. Consequently, even if the defendant’s certified question had been phrased in a
sufficiently explicit and detailed manner, its answer might not have been dispositive of the
case, as required by Preston and related precedent.

        In his brief before this court, the defendant does not raise precisely the same
arguments on the merits that he advanced in the court below. The defendant’s principal
arguments are that (1) “a driver is not required to drive perfectly on the highways in order
to avoid being stopped by police and subjected to a seizure,” and (2) “the Trial Court never
found the State met its burden of proof.” If the defendant intended to argue either of these
slightly more specific points of law on appeal, he once again failed to identify them in a
sufficiently explicit fashion in the certified question itself. And although the second of these
arguments is sufficiently specific for this court to engage in a meaningful analysis of whether
resolution of the issue would be dispositive of the defendant’s case, broad terms contained

                                                -5-
in a certified question may not be cured by a defendant’s narrower assertions in an appellate
brief. See, e.g., State v. Andre Jon Simmons, II, No. W2011-01004-CCA-R3-CD, 2012 Tenn.
Crim. App. LEXIS 472, at *14 (Tenn. Crim. App. June 26, 2012).

                                     CONCLUSION

       For the foregoing reasons, the defendant’s appeal is dismissed.




                                           _________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




                                             -6-
