State of Tennessee v. Prince Dumas

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

February 2, 2016 Session

STATE OF TENNESSEE v. PRINCE DUMAS

Appeal from the Criminal Court for Shelby County

No. 1304342 W. Mark Ward, Judge

No. W2015-01026-CCA-R3-CD - Filed August 1, 2016

_____________________________

The defendant, Prince Dumas, entered a guilty plea to one count of a first offense for

driving under the influence (“DUI”), a Class A misdemeanor. As part of the plea, the

defendant reserved a certified question of law. The defendant asserts that police initiated

a seizure without reasonable suspicion and that because all of the evidence stems from

this seizure, he is entitled to have the indictment dismissed. We conclude that the

defendant‟s certified question, as drafted, is not dispositive of the case, and we are

accordingly constrained to dismiss the appeal.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which CAMILLE R.

MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Claiborne Ferguson, Memphis, Tennessee (at plea and on appeal), and David Willis,

Memphis, Tennessee (at hearing), for the Appellant, Prince Dumas.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Michael McCusker,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The defendant was arrested for DUI, and he moved to suppress the evidence

obtained during his encounter with law enforcement. The only evidence at the

suppression hearing came from one of the police officers involved in the defendant‟s

arrest. Officer Brian Redick testified that on October 11, 2012, at approximately 1:45

a.m., he was conducting a traffic stop when a citizen flagged him down and told him that

a “suspicious vehicle” was “sitting off the side of the roadway.” It took Officer Redick

about three or four minutes to finish with the traffic stop, and he proceeded less than a

quarter of a mile down the road, where he found the defendant‟s vehicle.

The defendant‟s vehicle was pulled off of the road into a field. The vehicle was

parked approximately fifteen feet from the edge of the road. Officer Redick testified that

when he saw the vehicle off to the side of the road, he activated his blue lights and ran the

license plate to make sure it had not been reported stolen. Officer Redick then walked up

to the vehicle. He could not see that anyone was in the vehicle at the time that he was

approaching it. Once he got up to the vehicle, he saw that the defendant was in it and that

the defendant was asleep. The car was running.

Officer Redick knocked on the window. The defendant either rolled down the

window or opened the door. The defendant‟s speech was slurred, and an odor of alcohol

emanated from his vehicle and from his person. At this point, Officer Redick put the

defendant in handcuffs and put him into the police vehicle while he waited for a DUI

officer to arrive. The defendant appeared unsteady on his feet and submitted to a

breathalyzer test. At the plea hearing, the prosecutor stated that the defendant failed field

sobriety tests and had a blood alcohol content of 0.151 percent according to the

breathalyzer.

Officer Redick testified that he had encountered a vehicle under similar

circumstances approximately twenty times, and that in fifteen of those, the driver was

intoxicated, while in the others the car was stolen or the driver was merely sleeping. He

acknowledged that he did not know at the time whether or not the defendant was the

owner of the field in which his vehicle was parked.

The trial court denied the motion to suppress. In doing so, the trial court found

that the activation of the emergency lights did not constitute a seizure. The trial court

did not make a determination of exactly when the seizure occurred, but it unambiguously

stated that “there was no seizure involved by turning on the blue lights.” The trial court

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offered alternative reasons for this finding. First, it found that there was no seizure

because the defendant, who was asleep, was not aware that the lights were activated. As

an alternative, the trial court found that the police officer had activated his lights in his

community caretaking role, finding that “it‟s certainly reasonable for an officer to check

on a car at 1:45 in the morning in a field to see if somebody is hurt” and that “it‟s

reasonable to activate your blue lights before you leave the car.” The trial court

determined that even if it were to conclude that the activation of the lights constituted a

seizure, there was reasonable suspicion to detain the defendant at the time the lights were

activated based on the time of night, the fact that the vehicle was running, and the

vehicle‟s location off the road.

The defendant entered a guilty plea pursuant to Tennessee Rule of Criminal

Procedure 37(b)(2)(A), reserving the following certified question of law:

Did the Court err in not granting the Defendant‟s Motion to

Suppress based on the initial stop and seizure (i.e., turning on

the blue lights) not being supported by reasonable articulable

suspicion for the stop. The question is based on the State v.

Moats, 403 S.W.3d 170 (Tenn. 2013) case law regarding the

illegality of traffic stops without reasonable suspicion. This

is a dispositive question because if the stop and initial seizure

was invalid, all evidence of impairment and driving would be

suppressed and the State would have no evidence to proceed

on a prosecution of Driving Under the Influence. The

conviction would be invalid.

ANALYSIS

In the case at bar, the strict requirements of Tennessee Rule of Criminal Procedure

37(b) once again preclude the review of a certified question of law. We have noted in the

past that this rule has become “the quagmire of criminal jurisprudence in Tennessee.”

State v. Thompson, 131 S.W.3d 923, 923-24 (Tenn. Crim. App. 2003). We have also

described it as “a trap” which does not function as intended. State v. Danny Harold Ogle,

No. E2000-00421-CCA-R3-CD, 2001 WL 38755, at *4 (Tenn. Crim. App. Jan. 17,

2001).

Under Tennessee Rule of Criminal Procedure 37(b), review is limited to the

questions which are identified in the certified question and which were decided by the

trial court. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). This court cannot

reach beyond the scope of the certified question which has been preserved by the parties.

State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008) (“[N]o issue beyond the scope of the

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certified question will be considered.”). Our jurisdiction to hear the certified question is

“predicated upon the [statutory] provisions for reserving a certified question of law.”

State v. Jon Michael Johnson, No. M2014-01834-CCA-R3-CD, 2015 WL 6164009, at *5

(Tenn. Crim. App. Oct. 21, 2015).

Tennessee Rule of Criminal Procedure 37(b)(2)(A) requires that the certified

question be dispositive of the case. A certified question is dispositive when the appellate

court must either affirm the judgment or reverse the judgment and dismiss the charges.

State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001). When the appellate court might reverse

and remand, the issue is not dispositive. State v. Wilkes, 684 S.W.2d 663, 667 (Tenn.

Crim. App. 1984).

Failure to properly certify a dispositive question of law results in dismissal. State

v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The reviewing court must make an

independent determination regarding whether the question presented is dispositive of the

case. State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007). The relevant issue is whether

the question is dispositive on the record presented on appeal. Id.

The trial court‟s decision regarding a motion to suppress is not dispositive when

there is additional, unchallenged evidence which could be used to support the conviction.

See State v. William Jeffery Sweet, No. E2008-00100-CCA-R3-CD, 2009 WL 2167785,

at *11 (Tenn. Crim. App. July 21, 2009) (concluding that question of the admissibility of

a blood alcohol test was not dispositive when witnesses were available to testify that the

defendant had been drinking and was driving erratically); State v. John Whittington, No.

W2004-02405-CCA-R3CD, 2005 WL 3059423, at *3 (Tenn. Crim. App. Nov. 10, 2005)

(noting that an officer‟s testimony that the defendant exhibited signs of intoxication could

support a conviction without the breathalyzer test, and the question of the suppression of

the breathalyzer was only dispositive when the conviction was DUI per se); State v. Jared

C. Brown, No. M2004-02101-CCA-R3-CD, 2005 WL 2139815, at *5 (Tenn. Crim. App.

Aug. 30, 2005) (dismissing appeal when the defendant failed to challenge a separate

warrant for a search performed at a delivery facility which yielded evidence to support

the conviction); State v. Kevin Bufford, No. M2004-00536-CCA-R3-CD, 2005 WL

1521779, at *4 (Tenn. Crim. App. June 24, 2005) (dismissing appeal because defendant‟s

confession made after seizure was not dispositive when there was video evidence of one

crime and codefendant implicated him in all offenses); State v. Michael Kennedy, No.

W2001-03107-CCA-R3-CD, 2003 WL 402798, at *3 (Tenn. Crim. App. Feb. 21, 2003)

(holding that question of consent to search was not dispositive when the victim could also

testify to defendant‟s possession of stolen items).

In fact, we have dismissed certified questions raising the validity of the basis for a

search when the search in question was also supported by alternative bases. In State v.

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Thurman G. Ledford, this court concluded that the question of whether the smell of

ammonia was sufficient to support the warrant was not dispositive because the warrant in

fact contained other information, including citizen complaints of visitors at all hours who

generally stayed only ten minutes. No. E2002-01660-CCA-R3-CD, 2003 WL 21221280,

at *1, 4 (Tenn. Crim. App. May 22, 2003) (“The strong odor of ammonia is not

determinative or dispositive because the validity of the search warrant can still rest on

other information supplied in the affidavit.”). We note, however, that in State v. Day, the

Tennessee Supreme Court reviewed whether there was reasonable articulable suspicion

for a stop despite the fact that the trial court decided the motion to suppress on an

alternative ground. In Day, the trial court had upheld the stop of a vehicle based on the

community caretaking doctrine. Day, 263 S.W.3d at 899 (“[T]he trial court

acknowledged that it was a close question, but ultimately concluded that „public safety‟

concerns rendered the stop valid.”). However, the certified question raised only the issue

of whether there was reasonable suspicion to initiate a traffic stop. Id. The Tennessee

Supreme Court noted that its “consideration of the stop under the community caretaking

exception might well yield a different outcome,” but ultimately only decided that there

was not reasonable suspicion to initiate the stop. Id. at 900. The dissent in Day suggests

that the better course would have been to dismiss the appeal as improvidently granted.

Id. at 906 (Koch, J., dissenting in part).

The certified question here raises the issue of whether there was reasonable,

articulable suspicion justifying a seizure. Although it cites to State v. Moats, 403 S.W.3d

170 (Tenn. 2015) overruled by State v. Kenneth McCormick, No. M2013-02189-SC-R11-

CD, __ S.W.3d __, 2016 WL 2742841, at *7 (Tenn. May 10, 2016), the certified question

does not raise the issue of whether the stop was justified under the community caretaking

doctrine. Neither does the certified question ask this court to review the trial court‟s

initial determination that turning on the emergency lights did not constitute a seizure.

A certified question may be rendered nondispositive by the failure to raise an

underlying issue when the determination of that underlying issue is necessarily the basis

of the disputed question. In State v. Christopher Christie, the defendant wished to

challenge the indictment as violative of the statute of limitations based on the premise

that a custodial arrest was contrary to statute and that the warrants for the arrest, which

purported to toll the statute, were consequently void. No. M2006-00612-CCA-R3-CD,

2007 WL 152484, at *2 (Tenn. Crim. App. Jan. 18, 2007). This court concluded that the

defendant‟s failure to preserve the record regarding the trial court‟s determination of the

validity of the custodial arrest rendered the remaining arguments nondispositive, and we

dismissed based on this ground and other procedural failures. Id. at *3. Here, likewise,

the defendant questions the reasons underlying the activation of the blue lights but does

not raise the basis of the denial of suppression: the finding that there was no seizure at

the time the lights were activated.

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The certified question here clearly limits the scope of our review to whether “the

initial stop and seizure (i.e., turning on the blue lights)” was “supported by reasonable[,]

articulable suspicion for the stop.” However, the trial court‟s explicit finding (the

correctness of which is not within the scope of review) was that there was no seizure

when the blue lights were activated. We have previously recognized that not every

activation of a patrol car‟s emergency equipment constitutes a seizure. See State v.

Robert Lee Vandergriff, Jr., No. E2010-02560-CCA-R3CD, 2012 WL 2445049, at *1

(Tenn. Crim. App. June 28, 2012); State v. James Dewey Jensen, Jr., No.

E2002-00712-CCA-R3-CD, 2002 WL 31528549, at *1 (Tenn. Crim. App. Nov. 15,

2002). Accordingly, whether there was reasonable, articulable suspicion to stop the

defendant at the time that the blue lights were activated is not dispositive of this

particular conviction, given the unchallenged conclusion that there was no seizure until

some unspecified time after Officer Redick had approached the vehicle on foot.

We note that, although the trial court did not have the benefit of the Supreme

Court‟s recent decision in State v. Kenneth McCormick, 2016 WL 2742841, the court‟s

determination that Officer Redick was acting within his community caretaking role is

consistent with our high court‟s most recent jurisprudence in that area. In McCormick, a

law enforcement officer discovered the defendant‟s vehicle at 2:45 a.m., sitting with its

headlights on, partially blocking the entry to a shopping center and partially in the

roadway. McCormick, 2016 WL 2742841, at *1. The officer turned on his “back blue

lights” and ultimately discovered the intoxicated defendant in the running vehicle. Id.

The Court noted that it would, “for the purposes of this appeal” assume that the activation

of lights was a seizure. Id. at *5. The Court held that a warrantless seizure is justified

under the community caretaking exception when the State can show that:

(1) the officer possessed specific and articulable facts which,

viewed objectively and in the totality of the circumstances,

reasonably warranted a conclusion that a community

caretaking action was needed, such as the possibility of a

person in need of assistance or the existence of a potential

threat to public safety; and (2) the officer‟s behavior and the

scope of the intrusion were reasonably restrained and tailored

to the community caretaking need.

Id. at *9. While the trial court provided several alternative bases for its conclusion that

the evidence should not be suppressed, these bases were not raised by the question

preserved by the parties. Neither was the trial court‟s determination that law enforcement

did not seize the defendant at the time that the blue lights were activated.

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We conclude that in this case, the failure to preserve for review the trial court‟s

determination that the activation of the blue lights did not constitute a seizure renders

meaningless the actual question presented, which is whether there was reasonable,

articulable suspicion to turn on the blue lights. Accordingly, the appeal is dismissed.

CONCLUSION

Having been presented with a certified question which is not dispositive of the

case before us, we are constrained to dismiss the appeal.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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