             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE                   FILED
                          JUNE 1998 SESSION
                                                            October 6, 1998

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
STATE OF TENNESSEE,          )
                             )
             Appellee,       )    No. 03C01-9710-CR-00438
                             )
                             )    Greene County
v.                           )
                             )    Honorable James E. Beckner, Judge
                             )
HASSON WALLER,               )    (Certified question of law)
                             )
             Appellant.      )


For the Appellant:                For the Appellee:

Robert C. Newton                  John Knox Walkup
900 Anderson Street               Attorney General of Tennessee
Bristol, TN 37620                        and
                                  Clinton J. Morgan
                                  Assistant Attorney General of Tennessee
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  C. Berkeley Bell, Jr.
                                  District Attorney General
                                          and
                                  Eric Christiansen
                                  Assistant District Attorney General
                                  109 South Main Street
                                  Greeneville, TN 37743




OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Hasson W aller, was convicted upon his pleas of guilty in

the Greene County Criminal Court of the offenses of possession with intent to sell

marijuana, a Class E felony, and possession of a firearm in the commission of a felony,

a Class E felony. The defendant was sentenced as a Range I, standard offender to

concurrent sentences of one year, one hundred ten days to be served in the county jail

and the remainder on probation. He was also fined two thousand dollars. The

defendant appeals as of right upon a certified question of law that is dispositive of this

case. See T.R.A.P. 3(b); Tenn. R. Crim. P. 37(b).



              The defendant contends that the trial court erred in refusing to suppress

the contraband found as the result of a search, conducted after he was placed in

custody, of the cars over which he asserted ownership. The trial court found that the

search of the cars did not violate the defendant’s rights under the Fourth Amendment of

the United States Constitution and Article 1, Section 7 of the Tennessee Constitution

because the defendant consented to the search and the police had probable cause to

arrest the defendant. The state contends that the appeal does not present a properly

certified question of law and that, in any event, the trial court's findings are correct. We

conclude that the defendant's Fourth Amendment rights were not violated and affirm

the decision of the trial court.



              The following facts were introduced during the motion to suppress

hearing. On August 16, 1996, the defendant and his cousin, Eric Waller, arrived at

Malone's Wrecker Service in a red Ford Escort to pick up a black Nissan that had been

repaired. The defendant wanted to test drive the car before paying for it, but Don

Malone, the owner of the wrecker service, would not let the men leave with the car

without paying for it. Mr. Malone offered to accompany them on the test drive, but the



                                             2
defendant argued that he did not want him along for the test drive. A heated argument

ensued, and the police were called.



              Greeneville Police Officer Pat Hankins and an auxiliary officer responded

to a request from Officer Crum, who was already at the scene, to assist with a

disturbance at the wrecker service. Officer Hankins testified that when he arrived at the

wrecker service, he saw the defendant in a heated discussion with the owner and

Officer Crum. Officer Hankins testified that before Officer Crum left to respond to

another call, Officer Crum told him that he saw Eric Waller leave in the red car and

return a short time later on foot.



              The dispute was resolved when the defendant agreed to allow Mr. Malone

to accompany Eric W aller on the test drive. Officer Hankins testified that while the two

were out on the test drive, he spoke with the defendant in an attempt to calm the

situation. He testified that the defendant said that the car broke down after returning

from Knoxville where he had visited his girlfriend.



              Officer Hankins testified that after Mr. Malone and Eric Waller returned

from the test drive, Mr. Malone told him that he spotted the red car a quarter-mile down

the road. The officer said that he then asked Eric Waller where he had been when the

car broke down. He stated that Eric Waller told him that they had been to a basketball

game in Knoxville.



              Officer Hankins testified that he asked the defendant and Eric Waller for

identification, and they gave him their driver's licenses. He said that he wanted to

check discreetly for outstanding warrants, but he could not because they were standing

next to him. He testified that in order to have some privacy, he told them that he had to

respond to a call at a market down the road. While at the market and talking to the



                                             3
dispatcher on the telephone, he said that his partner, the auxiliary officer, saw the

defendant and Eric Waller drive away from the wrecker service. The officers drove to

where the red car was reported to have been parked and saw the defendant in the

black car and Eric Waller in the red car.



                Officer Hankins testified that he asked Eric Waller to get out of the red

car. He said that he then handcuffed Waller, told him that he was not under arrest, and

put him into the back of his police cruiser. Officer Hankins then approached the

defendant, asked him to get out of the black car, handcuffed him, told him that he was

not under arrest, and put him in the back of Officer Crum's cruiser, who had come back

to the scene.



                Officer Hankins testified that he asked Eric Waller for permission to

search the red car. He said that Eric Waller told him that the defendant was the owner.

Officer Hankins then asked the defendant, "Do you have any problem if we look in the

car?" to which the defendant answered that he did not. Officer Hankins said that he left

the auxiliary officer with the defendant in case the defendant wanted to retract his

permission for the search. He admitted that he did not tell the defendant that the

defendant could stop the search at any time.



                Officer Hankins testified that he got the keys out of the ignition of the red

car, opened the trunk, and immediately smelled marijuana. He stated that he found

approximately six pounds of marijuana wrapped in a garbage bag. He said they also

found a gun inside a suitcase in the trunk. He said a second gun was found under the

driver's seat of the red car. Officer Hankins testified that the black car was searched,

and a saran, such as would be used to wrap a cigarette, was found in plain view. Officer

Hankins testified that after finding these items, he called in a report, and Eric Waller

and the defendant were transported to the Greeneville police station.



                                               4
              At the conclusion of the hearing, the trial court overruled the defendant's

motion to suppress the evidence seized, concluding that there was probable cause and

exigent circumstances and that the defendant had consented to the search. The trial

court found that the officer's reasonable suspicion had matured to probable cause

because the defendant drove away after surrendering his driver's license to the officer.

The trial court found exigent circumstances to search the vehicles because they were

mobile and were subject to being removed before a warrant could be obtained.



              On appeal, the trial court's findings of fact at the conclusion of a

suppression hearing will be upheld unless the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the burden of

demonstrating that the evidence preponderates against the trial court's factual findings.

Id. However, the application of the law to the facts as determined by the trial court is a

question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d

626, 628-29 (Tenn. 1997).



                                              I

              Preliminarily, the state contends that the defendant has failed to comply

with the prerequisites for appellate review of a certified, dispositive question of law. The

state argues that (1) the defendant's question does not clearly identify the scope and

limits of the legal issue that is reserved, (2) the question does not contain the reasons

relied upon by the defendant at the suppression hearing, (3) the judgment is confusing

and does not contain a statement of the certified question, and (4) the record does not

contain all of the proceedings below that bear upon the merits. With respect to the

record, the state argues that the tape recording and the transcript of the conversation

between the defendant and the police officer have not been provided with the record.




                                             5
              In pertinent part, Rule 37(b), Tenn. R. Crim. P., provides for an appeal in a

criminal case under the following circumstances:

              (2) Upon a plea of guilty or nolo contendere if:

                     (i) defendant entered into a plea agreement under Rule
              11(e) but explicitly reserved with the consent of the State and
              of the court the right to appeal a certified question of law that
              is dispositive of the case; or

                     ...

                     (iv) defendant explicitly reserved with the consent of the
              court the right to appeal a certified question of law that is
              dispositive of the case.

The 1997 Advisory Commission Comment to this Rule states the following:

              In order for an attorney to perfect an appeal under either of
              these two (2) sections, the attorney must be certain that the
              application fully comports with the requirements for this type of
              an appeal as set forth by the Tennessee Supreme Court in its
              decision of State v. Preston, 759 S.W.2d 647 (Tenn. 1988).
              Failure to follow the dictates of the Preston decision could
              result in the dismissal of the appeal.

Rule 3(b), T.R.A.P., provides that an appeal as of right by a defendant lies from a

judgment of conviction upon a guilty plea "if the defendant entered into a plea

agreement but explicitly reserved with the consent of the state and the trial court the

right to appeal a certified question of law dispositive of the action."



              Our supreme court addressed the proper procedure for reserving a

certified question of law in State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988).

Preston requires that the certified question "be so stated as to clearly identify the scope

and the limits of the legal issue reserved." Id. For issues involving the validity of

searches, "the reasons relied upon by defendant in the trial court at the suppression

hearing must be identified in the statement of the certified question." Id. Finally, "the

order must state that the certified question was expressly reserved as part of the 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."

Id.


                                              6
              The certification order states as follows:

                     The State and the Defendant affirm that the Defendant,
              pursuant to [Tenn. R. Crim. P. ] 37(b)(2), has explicitly
              reserved with the express consent of the State certified
              question(s) of law with regard to the Defendant's [detention] by
              the Greeneville Police officers and subsequent search of his
              automobiles and the seizure of evidence subject to this
              indictment. The question of law to be certified for review is as
              follows:

                             Did the trial court err in not suppressing
                     any and all evidence seized from the defendant's
                     automobiles on or about August 16, 1996 in the
                     initial detention of the defendant and his
                     subsequent consent to search his automobiles
                     violated the defendant's rights under the Fourth
                     Amendment of the United States Constitution
                     and Article 1, Section 7 of the Constitution of
                     Tennessee, being an unreasonable seizure of
                     his person and an unlawful search of his
                     automobiles?

              Pursuant to State v. Preston, 759 S.W.2d 647 (Tenn. 1988),
              the State, the Defendant, with express approval of the Court.

                      The State and this Honorable Court hereby expressly
              consent to the reservation of this certified question of law.
              Further, the State and this Honorable Court aver and affirm
              that they are of the opinion that this question is dispositive of
              the case. Specifically, this Court, the State, and Defendant
              affirm that if the Appellate Court finds in the Defendant's favor
              with regard to this certified question, then the subject
              prosecution must be dismissed.

Unquestionably, the order could have and should have been more detailed. However,

we do not view it to be so deficient as to require a dismissal of the defendant's appeal.

The order states the general claim by the defendant relative to his detention and search

of his vehicles. It also states that the right to appeal a certified question of law that is

dispositive of the case was explicitly reserved with the consent of the state and the trial

court.



              In Preston, our supreme court stated that "the reasons relied upon . . .

must be identified." 759 S.W.2d at 650. In the present case, the certified question

gives as reasons for the violation of the defendant's rights under the United States


                                              7
Constitution and the Tennessee Constitution the "unreasonable seizure of his person

and an unlawful search of his automobile." In his motion to suppress, the defendant

gave the same reasons but provided additional detail, including (1) that the detention

was not based on probable cause or the commission of a criminal offense in the

presence of the police officers, (2) that the search was without a warrant or exigent

circumstances, (3) that the search was without probable cause, (4) that the search

violated the defendant's expectation of privacy, and (5) that there was not effective

consent given for the search given the totality of the circumstances.



              Ideally, the certified question should have given the detailed reasons upon

which the defendant relied. However, we recognize that the question is just that and

not a brief presented to the court. The certified question contains a description of the

conduct that the defendant claims violated his rights and provides the reason that the

conduct violated his rights. We conclude that the question is sufficient to identify the

scope of our review.



              With respect to what the state calls the confusing judgment, we note that

the record reflects that the defendant's motion to suppress was heard and denied on

January 6, 1997. The technical record contains an order certifying the question of law

and stating that it is an addendum to the judgment order. The addendum states that it

was entered on January 24, 1997. However, the clerk stamped it as filed on May 19,

1997. We believe the date typed in the addendum was erroneously retained during

word processing and can be safely ignored. The defendant entered his guilty pleas and

received judgment on May 19, 1997, the same day that the addendum was filed. We

conclude the judgment order contains a statement of the certified question.



              Finally, with respect to the record being incomplete, we note that the trial

court relied on the recorded conversation between Officer Hankins and the defendant in



                                             8
order to determine that consent was given for the search. Neither this tape nor its

transcript is part of the record brought to this court. The Preston court stated that the

defendant has the burden of ensuring that "the record brought to the appellate court

contains all of the proceedings below that bear upon whether the certified question of

law is dispositive and the merits of the question certified." 759 S.W.2d at 650.

However, we believe that the certified question is dispositive and can be decided on its

merits without resorting to details of the recorded conversation.



                                             II

              The defendant contends that he was unlawfully detained through an illegal

arrest by the police. He asserts that the evidence obtained by the search should be

suppressed because the search was the result of an illegal arrest and the consent given

was coerced given the circumstances of the illegal arrest. The defendant argues that

when he was handcuffed and placed in the police cruiser, there was not probable cause

to arrest him. The state contends that there was probable cause to detain the

defendant and that he voluntarily gave effective consent.



              While operating a motor vehicle, the driver is required to have in his

immediate possession a valid operator's license. T.C.A. § 55-50-351. Failure to have

possession of an operator's license is a Class C misdemeanor, and any law

enforcement officer is empowered to arrest any person found violating this statute. Id.



              Officer Hankins testified that he thought that the defendant and Eric

Waller were “either wanted or up to something that they shouldn't be." This suspicion




                                             9
was based on hearing that Eric Waller moved the red car, knowing that their stories

conflicted, and seeing that the defendant left the wrecker service without his driver's

license and drove to the red car. Officer Hankins admitted that at the time he took their

driver's licenses, the two had not committed any crimes. However, when Officer

Hankins saw the defendant drive away from the wrecker service, he had probable

cause to arrest the defendant for driving without having immediate possession of his

driver's license. See T.C.A. § 55-50-351.



              The analysis of any warrantless search must begin with the proposition

that such searches are per se unreasonable under the Fourth Amendment to the United

States Constitution and Article I, Section 7 of the Tennessee Constitution. This

principle against warrantless searches is subject only to a few specifically established

and well-delineated exceptions. See Katz v. United States, 389 U.S. 347, 357, 88 S.

Ct. 507, 514 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980).

Before the fruits of a warrantless search are admissible as evidence, the state must

establish by a preponderance of the evidence that the search falls into one of the

narrowly drawn exceptions to the warrant requirement. State v. Shaw, 603 S.W.2d 741,

742 (Tenn. Crim. App. 1980).



              A warrant is not needed when there is a consent that is "unequivocal,

specific, intelligently given, and uncontaminated by duress or coercion." State v.

Brown, 836 S.W.2d 530, 547 (Tenn. 1992). Thus, the question becomes whether the

consent to the search in this case was given voluntarily, a question that is determined

by examining the facts. State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App.

1993).




                                            10
             In this case, the defendant was in custody in the backseat of a police

cruiser. Officer Hankins asked the defendant, "Do you have any problem if we look in

the car?" The defendant answered that he did not. The trial court found that the facts

showed that the consent was freely given. The defendant relies on the assertion that

the arrest was unlawful, and therefore, the consent was not valid. Because we have

concluded that the arrest was based upon probable cause, we conclude that the

search, based upon the consent given after a valid arrest, was reasonable and did not

violate the defendant's Fourth Amendment rights.



             In consideration of the foregoing and the record as a whole, the

judgments of conviction are affirmed.



                                               ______________________________
                                               Joseph M. Tipton, Judge



CONCUR:



_____________________________
John H. Peay, Judge



_____________________________
David G. Hayes, Judge




                                          11
