        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 15, 2013

         STATE OF TENNESSEE v. JONATHAN CARL DAVIDSON

                    Appeal from the Circuit Court for Maury County
                        No. 21539     Jim T. Hamilton, Judge


                   No. M2012-02204-CCA-R3-CD - Filed 06/05/2013


The Maury County grand jury indicted appellant, Jonathan Carl Davidson, for driving under
the influence, second offense, and violation of the open container law. Following an
unsuccessful motion to suppress the evidence, appellant entered a guilty plea to driving under
the influence, second offense. Pursuant to the plea agreement, the State dismissed the
violation of the open container law charge, and the trial court sentenced appellant to eleven
months, twenty-nine days in the county jail, with forty-five days to serve. As a condition of
the plea agreement, appellant reserved the right to certify a question of law challenging the
legality of the initial traffic stop. Following our review, we affirm the trial court’s judgment.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
C AMILLE R. M CM ULLEN, JJ., joined.

Brian Clay Johnson (on appeal) and Joel R. Bellis (at hearing), Columbia, Tennessee, for the
appellant, Jonathan Carl Davidson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; T.
Michel Bottoms, District Attorney General; and Caleb Bayless, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                               I. Facts and Procedural History

       Spring Hill Police Officer David Kloke arrested appellant on August 17, 2011, for
driving under the influence, second offense, and violation of the open container law. The
affidavit of complaint for driving under the influence stated that appellant “was found to be
operating [a] motor vehicle while under [the] influence of an intoxicant . . . . [Appellant] was
unsteady on [his] feet, had bloodshot eyes[,] and [had a] strong odor of alcoholic beverage
emitting about [his] person.” The affidavit of complaint for violation of the open container
law stated that a “search of [appellant]’s vehicle revealed a mason jar containing a small
amount of what [appellant] described as assorted liquor,” which “was located in the driver’s
side door.”

       Appellant moved to suppress the evidence against him, arguing, inter alia, that the
State could not show that Officer Kloke had a reasonable suspicion, supported by specific
and articulable facts, that a crime had been, was being, or was about to be committed by
appellant. The trial court held a hearing on the motion to suppress on August 10, 2012.
Officer Kloke was the sole witness.

       Officer Kloke testified that he had been employed by the Spring Hill Police
Department for ten years. On August 17, 2011, he came into contact with appellant
following a 9-1-1 call by “Ms. Cartwright.” Ms. Cartwright told the 9-1-1 dispatcher that her
ex-boyfriend, the appellant, was “causing a disturbance” at her house. Officer Kloke testified
that he “believed,” based on the information he received from the dispatcher, that “at the
minimum, . . . a verbal domestic [had] occurred.” While Officer Kloke was en route to Ms.
Cartwright’s residence, the dispatcher advised Officer Kloke that the dispatcher had “heard
a male screaming in the background, yelling.” The dispatcher later informed Officer Kloke
that Ms. Cartwright reported that appellant had left the residence and was driving a “white,
panel van.” She also provided the license plate number of appellant’s vehicle.

        Officer Kloke testified that he observed a vehicle matching Ms. Cartwright’s
description turning off Mead Drive onto Depot Street. He turned around to follow the
vehicle and confirmed that the license plate number also matched. Officer Kloke testified
that he initiated a traffic stop at that point. He further testified that the basis for the stop was
to investigate “a verbal domestic.” Officer Kloke had not observed appellant commit any
traffic violations.

       On cross-examination, Officer Kloke testified that “verbal domestic” situations often
“become[] more” after investigation. He said that “dispatch can only get so much
information,” so it was his “job to investigate it further.” Officer Kloke testified that he did
not know Ms. Cartwright personally but was informed by dispatch that she was appellant’s
ex-girlfriend. Officer Kloke testified that appellant was charged with violating an order of
protection, but the charge was dismissed in general sessions court.1 He said that another


       1
           Officer Kloke did not testify regarding whether he learned about the order of protection before or
                                                                                               (continued...)

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officer went to Ms. Cartwright’s house to speak with her after Officer Kloke arrested
appellant. Appellant was not charged with domestic assault.

       On re-direction examination, Officer Kloke testified that his department’s policy
regarding “domestic calls” was to “investigate it to the fullest.” He said that his intent when
stopping appellant was to “get his side of [the situation] . . . to figure out exactly what
happened.”

       At the conclusion of the hearing, the trial court denied appellant’s motion to suppress
the evidence, stating as follows:

        What you have here is . . . a person who [called] the police department in
        Spring Hill and complained about her ex-boyfriend[’s] coming over there and
        raising cane at her house. [The 9-1-1 dispatcher] puts it out on the dispatch
        that [this is] the information that he’s received. This officer is on patrol. He
        gets a description of the vehicle and the license tag number from dispatch. He
        falls in behind the car[] when he sees it[.] [H]e verifies that the tag number on
        the car he’s following is the same tag number that the dispatcher had, so
        nothing wrong with that.

       Subsequently, appellant entered a conditional guilty plea, attempting to reserve the
following certified questions of law:

        a. Did the State meet [i]ts burden of proving it had a reasonable suspicion,
        supported by specific and articulable facts, that a criminal offense had been or
        was committed to make a valid stop upon the Defendant[?]

        b. If the State failed to establish within the suppression hearing that it did not
        [sic] have a reasonable suspicion, supported by specific and articulable facts,
        that a criminal offense had been or was committed to make a valid stop upon
        the Defendant, should the above styled case be dismissed for failure by the
        State to meet [i]ts initial burden that a valid stop was made in order to conduct
        a valid search on the Defendant[?]




        1
          (...continued)
after arresting appellant. Furthermore, his testimony did not state whether the order of protection involved
the complainant in this case.

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                                         II. Analysis

                                    A. Certified Question

       Rule 3(b)(2) of the Tennessee Rules of Appellate Procedure permits a defendant to
plead guilty while reserving the right to appeal a certified question of law that is dispositive
of the case. In doing so, a defendant must also comply with the requirements of Rule
37(b)(2)(A) of the Tennessee Rules of Criminal Procedure. Rule 37 outlines the following
requirements:

       (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. App. 37(b)(2)(A)(i)-(iv) (2011).

      Our courts have explicitly defined the prerequisites to an appellate court’s
consideration of the merits of a question of law certified pursuant to Rule 37(b)(2)(A):

       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 admissibility
       of statements and confessions, etc., the reasons relied upon by defendant in the

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       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 [Tennessee Rule of Criminal
       Procedure] 37 have been dismissed because the certified question was not
       dispositive. Also, the order must state that the certified question was expressly
       reserved as part of a plea agreement, that the State and the trial judge
       consented to the reservation[,] and that the State and the trial judge are of the
       opinion that the question is dispositive of the case. Of course, the burden is on
       defendant to see that these prerequisites are in the final order and that the
       record brought to the appellate courts contains all of the proceedings below
       that bear upon whether the certified question of law is dispositive and the
       merits of the question certified. No issue beyond the scope of the certified
       question will be considered.

State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The Preston requirements are
mandatory. State v. Bowery, 189 S.W.3d 240, 245-46 (Tenn. Crim. App. 2004) (citing State
v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996)). Failure to comply with the
requirements results in dismissal of the appeal. Id. (citing Pendergrass, 937 S.W.2d at 837).

        In this case, the reserved questions of law are not included on the judgment form, but
the questions are set forth in a document entitled “Agreed Order,” which was signed by the
trial court, defense counsel, and counsel for the State. We conclude that the “Agreed Order”
meets the requirements of Tennessee Rule of Criminal Procedure 37(b)(2)(A)(i), (iii), and
(iv). See Tenn. R. Crim. P. 37, Advisory Comm’n. Cmt. to 2011 Amendment (“[T]he
amendment removes the requirement that a separate document setting forth the certified
question of law be incorporated by reference in the judgment, and it allows the requirements
of the Rule to be met by an order entered by the trial court certifying the question.”); cf. State
v. James Hayes, No. M2012-00262-CCA-R3-CD, 2013 WL 1896828, at *2-3 (Tenn. Crim.
App. May 6, 2013) (A document entitled “Addendum to Judgment” did not meet
requirements under the 2011 amendment to Rule 37 when it was signed only by defense
counsel). However, appellant’s second reserved question of law is not dispositive of the case
because it asks whether the case should be dismissed, which is antithetical to the definition
of “dispositive.” Nevertheless, we conclude that the prerequisites for consideration of the
merits of a certified question have been met by the first reserved question. Therefore, we



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now begin our analysis of whether the police had reasonable suspicion that appellant had
been or was about to commit a crime sufficient to justify the traffic stop.

                                    II. Motion to Suppress

        After an evidentiary hearing on the merits of a motion to suppress, we attribute to the
factual findings of the trial court the weight of a jury verdict. State v. Makoka, 885 S.W.2d
366, 371 (Tenn. Crim. App. 1994). We review de novo the trial court’s legal conclusions
denying a motion to suppress. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008). In
doing so, we give deference to the trial judge’s findings of fact unless the evidence
preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “‘[C]redibility 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.’” Northern, 262 S.W.3d at 747-48 (quoting Odom, 928 S.W.2d
at 23). The prevailing party on the motion to suppress is afforded the “‘strongest legitimate
view of the evidence and all reasonable and legitimate inferences that may be drawn from
that evidence.’” Northern, 262 S.W.3d at 748 (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)); see State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); Odom, 928 S.W.2d at
23.

        We begin with the proposition that “[b]oth the state and federal constitutions protect
against unreasonable searches and seizures; the general rule is that a warrantless search or
seizure is presumed unreasonable and any evidence discovered is subject to suppression.”
State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012). Our supreme court has recognized three
categories of police interactions with private citizens: “(1) a full-scale arrest, which requires
probable cause; (2) a brief investigatory detention, requiring reasonable suspicion of
wrongdoing; and (3) a brief police-citizen encounter, requiring no objective justification.”
Id. (citing Daniel, 12 S.W.3d at 424). “The police may stop a vehicle if they have either
probable cause or an ‘articulable and reasonable suspicion’ that the vehicle or its occupants
are subject to seizure for violation of the law.” State v. Robert Jason Burdick,
M2011-01299-CCA-R3-CD, 2012 WL 2151489, at *10 (Tenn. Crim. App. June 13, 2012),
perm. app. denied (Tenn. Sept. 18, 2012) (citing Delaware v. Prouse, 440 U.S. 648, 663
(1979); State v. Watkins, 827 S.W.2d 293, 294 (Tenn.1992)).

        Appellant’s certified question specifically challenges whether Officer Kloke had a
reasonable suspicion that appellant had committed a crime to justify stopping appellant’s
vehicle. His question necessarily implicates the second category of police-citizen interaction,
the brief investigatory stop. Our supreme court has recently summarized the present state of
the law regarding brief investigatory stops:



                                               -6-
               When an officer has reasonable suspicion, supported by specific and
       articulable facts, to believe that a criminal offense has been or is about to be
       committed, a brief investigatory detention is permitted. Reasonable suspicion
       must be supported by more than the officer’s inchoate and unparticularized
       suspicion or ‘hunch[]’; however, reasonable suspicion can be established with
       information that is different in quantity or content than that required to
       establish probable cause . . . [and] can arise from information that is less
       reliable than that required to show probable cause.

               Trial courts must examine the totality of the circumstances when
       evaluating whether an officer has established the requisite level of suspicion
       to justify a [brief investigatory] stop. These circumstances include an officer’s
       observations, information from other law enforcement personnel or agencies,
       information from citizens, known patterns of criminal offenders, or deductions
       based upon experience. When evaluating the reasonableness of the police
       officer’s suspicion, the nature of the crime suspected may be a factor.

State v. James David Moats, --- S.W.3d ---, No. E2010-02013-SC-R11-CD, 2013 WL
1181967, at *5 (Tenn. Mar. 22, 2013) (citations and internal quotation marks omitted).

        In this case, Officer Kloke had more than an inarticulate hunch. Officer Kloke’s
suspicion of appellant’s wrongdoing was reasonable and was supported by specific and
articulable facts. He knew that Ms. Cartwright had called 9-1-1 because her ex-boyfriend,
the appellant, had been at her house causing a disturbance, and he deducted from his
experience and the patterns of domestic assault offenders that there was a probability that
something more than a verbal argument had occurred. In addition, the Spring Hill Police
Department had an expressed policy to fully investigate domestic disturbance calls.

        As this court noted in State v. James Oliver Grayless, No. 03C01-9510-CC-00311,
1997 WL 749406, at *5 (Tenn. Crim. App. Dec. 5, 1997), “[h]uman interaction disturbance
calls are fraught with the possibility of danger and/or bodily injury . . . . A reasonable officer
could conclude that he was en[]route to a possible domestic violence or similar call.” In such
a situation, it would be reasonable for a police officer to briefly detain a suspect to further
investigate. See id. In Grayless, this court determined that under the totality of the
circumstances, a police officer had reasonable suspicion to briefly detain a citizen when the
citizen was exiting a vehicle associated with a “disturbance call.” Id. at *1, 3-4.

        The United States Supreme Court asked in Terry v. Ohio,“[W]ould the facts available
to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution
in the belief’ that the action taken was appropriate?” Terry v. Ohio, 392 U.S. 1, 21-22 (1968)

                                               -7-
(quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). In this case, was it reasonable
for Officer Kloke to stop appellant’s vehicle when he knew that appellant had just left the
scene of a domestic disturbance and when he knew that investigations of domestic
disturbances often resulted in criminal charges? Based on the totality of the circumstances,
we conclude that the answer to that question is yes. Just as in Grayless, Officer Kloke had
a sufficiently reasonable suspicion that appellant had committed a crime to justify a brief
investigatory detention. Therefore, we affirm the judgment of the trial court.

                                        CONCLUSION

         Based on the parties’ briefs and the applicable law, we affirm the judgment of the trial
court.


                                                      _________________________________
                                                      ROGER A. PAGE, JUDGE




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