        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned On Briefs May 21, 2013

       STATE OF TENNESSEE v. JAMES ANTHONY JOHNSON, JR.

                   Appeal from the Criminal Court for Knox County
                           No. 96373 Bob R. McGee, Judge


                  No. E2012-01212-CCA-R3-CD - Filed July 30, 2013


The Defendant, James A. Johnson Jr., pleaded guilty in the Criminal Court for Knox County
to possession with the intent to sell marijuana within 1000 feet of a school, a Class E felony,
possession of a firearm during the commission of a dangerous felony, a Class D felony,
possession of drug paraphernalia, a Class A misdemeanor, and driving on a suspended
license, a Class B misdemeanor. The Defendant was sentenced to three years for possession
with the intent to sell marijuana with two years of the sentence to be served at 100% and the
remaining year to be served at 30%, three years for possession of a firearm during the
commission of a dangerous felony to be served consecutively to the marijuana sentence,
eleven months and twenty-nine days for possession of drug paraphernalia to be served
concurrently with the marijuana sentence, and six months for driving on a suspended license
to be served concurrently with the marijuana sentence. On appeal, the Defendant presents
a certified question of law regarding the legality of the traffic stop and subsequent arrest and
searches that led to his convictions. Because the certified question was not properly
reserved, we dismiss the appeal for lack of jurisdiction.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which JAMES C URWOOD W ITT,
J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Joseph A. Fanduzz, Knoxville, Tennessee, for the appellant, James Anthony Johnson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Randall Eugene Nichols, District Attorney General; and TaKisha Monette
Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.




                                          OPINION
        At the suppression hearing, Knoxville Police Department Officer Andrew Gyorfi
testified that on December 18, 2010, he was told that the Defendant was a suspect in a crime
and was driving a particular car nearby. He said that he accessed the Defendant’s driver’s
license photograph and record on his patrol car’s computer, which showed that the
Defendant’s license was suspended. He said his patrol car’s video camera recorded his stop
of the Defendant. He said the Defendant continued to his house, pulled over, and got out of
the car. Officer Gyorfi said he detained the Defendant for driving on a suspended license and
asked him if he possessed anything illegal. He said the Defendant stated that he had
something in his pants pocket and that it was marijuana.

       As the recording of the stop played in the courtroom, Officer Gyorfi testified that the
Defendant asked why he was being handcuffed and that Officer Gyorfi responded that the
Defendant was driving with a suspended license. He said that the Defendant asked how
Officer Gyorfi knew he had a suspended license. He stated that after the officers checked
the Defendant’s record and called a K-9 officer, the Defendant asked again how Officer
Gyorfi knew he had a suspended license. He said he showed the Defendant the photograph
and information that showed he had a suspended license. Officer Gyorfi said the Defendant
knew that his license was suspended.

        On cross-examination, Officer Gyorfi testified that he had seen the Defendant’s car
seconds before he stopped him, that he waited on a side road because an investigator told him
that the Defendant’s car was moving in that direction, and that the Defendant was the suspect
in an armed robbery. He said that while he was on the side road, he saw the car that matched
the investigator’s description but that he could not see the driver when he stopped the car.

       Officer Gyorfi testified that he got out of his police car with two other officers, drew
his gun, knocked on the Defendant’s window, asked to see his hands, pulled the Defendant
from the car, handcuffed him, and placed him in the back of the police cruiser. He said that
he knew the Defendant’s identity when he saw him get out of the car because he had seen the
photograph. He agreed that he did not identify the Defendant other than by sight until the
Defendant was in the police cruiser and that the Defendant was stopped and detained because
he believed the Defendant was driving on a suspended license. Officer Gyorfi said that he
drew his gun because the Defendant was a suspect in an aggravated robbery or burglary and
that he deemed it necessary for his safety.

        Officer Gyorfi testified that he called the investigators to confirm the Defendant was
the correct suspect for the burglary. He said that there was confusion with the Defendant’s
name based on a previous incident when the Defendant used the name “Davis” and that he
called to make sure the Defendant was the person the investigators wished to interview.


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        Officer Gyorfi testified that after the Defendant was in the police cruiser, the
Defendant consented to a search of the car. He said they searched the car and found 76.7
grams of marijuana and $948. He said the Defendant also consented to a search of the house
where the Defendant stopped, which was the Defendant’s mother’s house. He said that as
a result of that search, they found six and one-half pounds of marijuana, a Ruger .45 caliber
handgun, an assault rifle, and $1320.

       Officer Gyorfi testified that he did not have an arrest warrant for Mr. Johnson when
he handcuffed him. On redirect examination, he said that at the time of the arrest, he had
turned on his cruiser’s blue lights. He said that he knew the Defendant had a suspended
license and was an aggravated robbery suspect. He said that when he went to the car, he told
the Defendant that he was under arrest for driving with a suspended license.

       The trial court found that Officer Gyorfi possessed sufficient information showing the
Defendant’s license was suspended and that the Defendant was driving the specific car
described by the police dispatcher. It found that the identification of the Defendant from the
photograph on the computer was sufficient to arrest him for driving with a suspended license
and that the officer’s knowledge the Defendant was suspected in another crime was
immaterial to his authority to make the arrest for driving with a suspended license. It held
that any further discussion of the Defendant’s identity concerned whether he was a home
invasion suspect. The court found that the searches of the car and the house following the
arrest were appropriate, consensual, and lawful. The court denied the motion to suppress.

       After the suppression hearing, the Defendant pleaded guilty, reserving two certified
questions for appeal:

       (1) Whether on December 18, 2010, an illegal seizure occurred when
       Knoxville Police Department officers pulled the Defendant’s vehicle over?

       (2) Whether on December 18, 2010, an illegal seizure occurred when
       Knoxville Police Department officers made the Defendant exit his vehicle,
       placed him in handcuffs, and then placed him in a police cruiser?

       Initially, the State contends that this court does not have the jurisdiction to review the
issue because the Defendant failed to reserve the certified questions of law properly. It
argues that the questions reserved are too broad because they do not include the reasons
given by the trial court in denying the motion to suppress. It notes that the questions in the
Defendant’s brief have modified the original questions.

       Pertinent to this appeal, Tennessee Rule of Criminal Procedure 37(b)(2)(A) provides
that an appeal can come from a plea of guilty if the defendant enters into a plea agreement

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and explicitly reserves with the consent of the State and the trial court a certified question of
law that is dispositive of the case. It specifies that:

       (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; [and]

       (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 [.]

Tenn. R. Crim. P. 37(b)(2)(A)(i)-(ii); see also State v. Armstrong, 126 S.W.3d 908 (Tenn.
2003); State v. Irwin, 962 S.W.2d 477 (Tenn. 1998); State v. Pendergrass, 937 S.W.2d 834
(Tenn. 1996); State v. Preston, 759 S.W.2d 647 (Tenn. 1988).

Our supreme court has said:

       [T]he 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 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.

Preston, 759 S.W.2d at 650 (emphasis added); see also Pendergrass, 937 S.W.2d at 836.
The burden is on the Defendant to ensure that he has complied with the requirements of Rule
37(b). See Pendergrass, 937 S.W.2d. at 838.

        We view the present case to be similar to the circumstances in State v. Kale J.
Sandusky, No. M2008-00589-CCA-R3-CD (Tenn. Crim. App. Mar. 4, 2009), perm. app.
denied (Tenn. Aug. 24, 2009). In that case, the certified question was “‘whether or not the
entries by law enforcement into [the Defendant’s] home on October 23, 2006 were in
violation of constitutional guarantees against unreasonable searches and seizures under the
state and federal constitutions . . . .’” This court concluded that the question was too broad
and dismissed the appeal. Id., slip op at 4.

        The Defendant has not complied with the requirements because he failed to identify
either the grounds upon which he argued that the stop and arrest were illegal or upon which
the trial court justified its decision. We conclude that this court is without jurisdiction to

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review the question of the search and seizure, and we dismiss the appeal. See, e.g., State v.
Thomas G. McConnell, No. M2011-00675-CCA-R3-CD (Tenn. Crim. App. Dec. 13, 2011)
(concluding that the question “[w]hether the motion to suppress should have been granted
because the stop of the defendant’s vehicle was unlawful” was improper because it failed to
state the Defendant’s argument’s rationale), perm. app. denied (Tenn. April 27, 2012); State
v. John Anthony Partin, M2010-00190-CCA-R3-CD (Tenn. Crim. App. Feb. 24, 2011)
(concluding that a question that did not state the defendant’s rationale used at the suppression
hearing did not sufficiently identify the scope of the issue); State v. Tobais Tony Horton and
Latoya Lynn Townsend, No. W2008-01170-CCA-R3-CD (Tenn. Crim. App. Aug. 13, 2009)
(concluding that a question that identifies neither the rationale below nor the particular search
it is challenging is improperly reserved), perm. app. denied (Tenn. Dec. 14, 2009).

       In consideration of the foregoing and the record as a whole, we dismiss the appeal.


                                            _ _ _ _ _ _ __ _ _ ______________________ _ _ _
                                            JOSEPH M. TIPTON, PRESIDING JUDGE




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