              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                       FILED
                              NOVEMBER 1997 SESSION
                                                                        March 5, 1998

                                                                      Cecil W. Crowson
STATE OF TENNESSEE,                 )                                Appellate Court Clerk
                                    )
              Appellee,             )      No. 01C01-9612-CC-00526
                                    )
                                    )      Maury County
v.                                  )
                                    )      Honorable James L. Weatherford, Judge
                                    )
AVERY Q. WALKER,                    )      (State appeal - Motion to Suppress)
                                    )
              Appellant.            )



                                  DISSENTING OPINION



              I respectfully dissent from the majority opinion’s conclusion, upon the

record before us, that Officer Gault was justified in arresting the defendant. Also, I

believe that the case should be remanded to the trial court for the entry of appropriate

findings of fact that would allow for sufficient appellate review.



              As to the majority opinion’s legal conclusion regarding Officer Gault’s right

to arrest the defendant, I do not agree with its implication that the police are justified in

arresting a person if the person has no photograph identification to present. The

statutory circumstance used by the majority opinion to justify foregoing use of a citation

states, in toto, “The person arrested cannot or will not offer satisfactory evidence of

identification, including the providing of a field-administered fingerprint or thumbprint

which a peace officer may require to be affixed to any citation.” I believe that this

provision, by its full terms, reflects that the legislature did not contemplate that a

photograph identification would be required.
              The burden at the suppression hearing was upon the state to prove by a

preponderance of the evidence that the arrest was justified. There was conflicting

testimony regarding material points. Officer Gault had little personal recollection of his

contact with the defendant, stating that he did not recall any particular statements made

by the defendant. Also, he did not recall checking information with the dispatcher,

although he indicated that if the defendant was who he said he was and the license

number was confirmed, a citation would have been issued. On the other hand, the

dispatcher’s testimony reflected that Officer Gault did, in fact, check the license number

and information that the defendant claimed to have given to the officer. The defendant

testified that the information “checked out.”



              I believe that there was evidence presented from which the trial court

could have found that Officer Gault’s testimony was insufficient to prove by a

preponderance of the evidence that the arrest was justified. Similarly, I believe that the

trial court could have found, as well, that the circumstances as testified to by the

defendant, as corroborated by the dispatcher, reflected sufficient provision of

identification to justify the use of a citation. In other words, if the trial court concluded

that Officer Gault’s testimony, admittedly given with faulty memory, did not prove the

state’s case by the preponderance of the evidence, I believe that the evidence before

us and the law would support the trial court’s decision to grant the motion to suppress.



              Unfortunately, the trial court did not enter findings of facts, only a

conclusory order that stated that “the motion is well-taken and should be granted . . . .”

Ordinarily, the burden is upon the complaining party, in this case the state, to insure

that the reasons for a trial court’s order are made part of the record for review. This

would mean that the state would be unsuccessful in this appeal because the conflicting

evidence justifies us concluding that the trial court discredited the material parts of

Officer Gault’s testimony. However, Rule 12(e), Tenn. R. Crim. P., states, “Where



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factual issues are involved in determining a motion, the court shall state its essential

findings on the record.” (Emphasis added). Thus, an affirmative duty is placed upon

the trial court to render findings of fact regardless of neither party making a request

therefor. Under these circumstances, I believe that we should remand the case for the

trial court to enter findings of fact that resolve material factual issues necessary to

proper appellate review.



                                                  _____________________________
                                                  Joseph M. Tipton, Judge




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