State of Tennessee v. Kendall McKenzie Kin Eayrs

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
August 18, 2015 Session
STATE OF TENNESSEE v. KENDALL MCKENZIE KIN EAYRS
Appeal from the Circuit Court for Sevier County
No. 18420-II Richard R. Vance, Judge
No. E2014-02072-CCA-R3-CD – Filed December 22, 2015
Following the denial of her motion to suppress, the Defendant-Appellant, Kendall
McKenzie Kin Eayrs, entered a guilty plea to driving under the influence, reserving three
certified questions of law challenging the legality of her stop. Because the trial court
erred in denying the motion to suppress after holding that the officer had probable cause
or reasonable suspicion to stop Eayrs‟s vehicle for being illegally parked in a turn lane,
we reverse the judgment of the trial court, vacate Eayrs‟s guilty plea, and dismiss the
indictment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Vacated
CAMILLE R. MCMULLEN, J., delivered the opinion of the court. JAMES CURWOOD WITT,
JR., and TIMOTHY L. EASTER, JJ., concurred in results only.
Bryan E. Delius and Bryce W. McKenzie, Sevierville, Tennessee, for the Defendant-
Appellant, Kendall McKenzie Kin Eayrs.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
James B. Dunn, District Attorney General; and Gregory C. Eshbaugh, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
On May 13, 2013, the Sevier County Grand Jury returned an indictment charging
Eayrs with one count of driving under the influence (DUI), a Class A misdemeanor. See
T.C.A. § 55-10-401. On September 27, 2013, Eayrs filed a motion to suppress evidence
and dismiss her charge, alleging that the officer did not have probable cause for her
warrantless arrest because the misdemeanor DUI offense did not occur in his presence.
On October 2, 2013, the State filed a response to this motion, arguing that the
officer saw two subjects, a male and a female, “fighting or struggling” next to a stopped
silver Honda before observing Eayrs in the driver‟s seat of the Honda. The State claimed
that the officer had reasonable suspicion to seize Eayrs after witnessing the physical
altercation outside of her car. It noted that during the officer‟s questioning, Eayrs
admitted that she had consumed three pints of beer, and the officer observed that she had
bloodshot eyes, slurred speech, and smelled of an alcoholic beverage. Eayrs then
performed poorly on the field sobriety tests. The State asserted that because Eayrs was in
physical control of the vehicle on a public highway, the DUI offense occurred in the
officer‟s presence. It also asserted that the officer, after conducting his investigation, had
sufficient probable cause to arrest Eayrs for DUI. For these reasons, the State argued that
the motion to suppress and/or motion to dismiss should be denied.
Also on October 2, 2013, Eayrs filed an amended motion to suppress, arguing that
all evidence resulting from the illegal stop should be suppressed and that her charge
should be dismissed. Eayrs claimed that the officer lacked articulable reasonable
suspicion or probable cause at the time of the stop. As support, she stated that she
stopped her vehicle to allow her passengers to switch seats and that her actions did not
violate any traffic offenses or laws. She also asserted that the officer‟s claim that he
witnessed a physical altercation between her passengers was merely a “blatant attempt to
cure an otherwise unconstitutional traffic stop.” In anticipation of the State‟s argument
that the officer‟s stop was permitted under the “community caretaker” function of law
enforcement, Eayrs insisted that nothing about the stop indicated the need for assistance
or the need for the officer to activate his lights for safety reasons. She claimed that under
the circumstances of this case, the officer‟s activation of his blue lights behind her
stopped vehicle was not a permissible exercise of his community caretaking function and
constituted a seizure of her person that implicated constitutional protections.
Motion to Suppress Hearing. At the July 29, 2014 suppression hearing, Officer
Brad Lowe of the Pigeon Forge Police Department testified that he was on duty at 12:44
a.m. on October 26, 2012, when he observed something unusual:
I was coming off Community Center Drive approaching the
Parkway. . . . As I was approaching the intersection, there was a truck
turning . . . on to [sic] Community Center Drive from southbound on the
Parkway. I see him turning. I look towards the Gatlinburg side of the
Parkway. As I‟m coming up to the red light at Community Center Drive
and Parkway, I see two individuals and a door open on a car as they‟re—
the car is parked in a turn lane that you can turn into the track or you can
make a U-turn in front of Walden‟s Landing to go northbound if you were
to make the U-turn. The car was facing southbound on the Parkway. The
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two individuals were beside the car towards the rear of the car closest to the
far left lane of the Parkway. The two individuals appeared to be in a
physical altercation.
He said that these two individuals “looked like they had a hold of each other,” and as he
came to the red light, he watched them for ten to twelve seconds. Officer Lowe stated
that it looked like they had a physical altercation before getting back into the stopped
vehicle as he was turning. Based on these observations, he decided to investigate the
matter.
Officer Lowe stated that the video camera in his patrol car was in good working
order at the time of this incident and that he had reviewed the video recording of the stop.
He said the recording accurately reflected his encounter with the individuals in the
vehicle “[e]xcept for the part where I‟m looking to the right, my camera is facing towards
the front of my vehicle and I‟m turning right onto the Parkway.”
The video recording of the stop was played during the motion hearing. The
beginning of the recording shows Officer Lowe following a right curve in the road as he
approaches the intersection of Community Center Drive and the Parkway, which is also
known as State Highway 73. As Officer Lowe gets closer to this intersection, an
eighteen-wheeler truck, which was headed south on the Parkway, turns right onto
Community Center Drive and passes Officer Lowe. Officer Lowe stops at the red light at
the intersection of Community Center Drive and the Parkway. Based on the time
depicted on the recording, Officer Lowe stops for approximately eight seconds at the red
light. During this stop, the camera inside his patrol car is focused at the area directly in
front of the vehicle, which includes the red light at the intersection, and Eayrs‟s vehicle is
not visible. Officer Lowe then turns right heading southbound on the Parkway. Because
of the bright lights from numerous businesses on either side of the highway, it is difficult
to see what is happening outside Eayrs‟s car when it first comes into view. As Officer
Lowe approaches Eayrs‟s vehicle, a two-door Honda, the passenger door is open. A
female, later identified as Kerri Sorenson, appears to exit the passenger side of the
vehicle at the time of 42:48. At 42:56, a male, later identified as Bradley Butler, exits the
car from the passenger side and then climbs back inside the Honda just as Officer Lowe
activates his blue lights. The female leans inside the car but does not enter the vehicle.
Officer Lowe stops his patrol vehicle, gets out, and immediately walks over to
Sorenson, who is standing outside the passenger side of the Honda. He asks her, “What‟s
going on?” Although some of Sorenson‟s response is unintelligible, she later clearly says
that she was “switching spots” with Butler because he needed “a window and air.”
Officer Lowe asks if they have been at a bar because they “look like it,” and Sorenson
responds that they have been at a restaurant. Officer Lowe then walks to the driver‟s side
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of the car and asks Eayrs if she has had anything to drink. Eayrs responds, “I have not.”
She explains that she and her passengers had been at a work dinner and one of her
passengers needed a window because he was about to get ill, which is why she stopped
her car.
Officer Lowe asks her to exit her vehicle and to get her identification. Eayrs
hands him her driver‟s license and when she steps out of her car, Officer Lowe says, “So
you haven‟t had any alcohol at all tonight?” Eayrs responds, “No, I‟m . . .” Officer
Lowe then interjects, “Are you sure about that, because you sound like, that‟s to me,
that‟s a yes.” Eayrs responds, “No seriously, I‟ve been taking care of these two.” Eayrs
explains that they had been at the convention center for a Ducks Unlimited dinner before
going to a brewery where they ate and her passengers had a couple of drinks. She says
they were on their way back to east Knoxville. Officer Lowe then tells her that he
smelled “a lot of alcohol” coming from her vehicle and now that she is standing outside
her car he can still smell alcohol. He says he has an intoximeter in his vehicle and he can
check her if she likes or otherwise, he can do a field sobriety test on her because he feels
like she is “telling him a story about not drinking.” He asks Eayrs to stand at the back of
her vehicle. Officer Lowe asks another officer to watch Eayrs while he moves his car
back to perform the field sobriety tests. Officer Lowe then exits his car and approaches
Eayrs. He tells her that her words are “kind of running together,” that he can smell
alcohol coming from her, and that her eyes are “bloodshot, kind of watery,” so he wants
to check her. Then he says, “You‟re telling me that you‟ve not had any alcohol to drink
tonight?” Eayrs responds that she‟s had a “couple of beers.” She explains that her eyes
are bloodshot because her glasses broke two days prior and she does not usually wear
contacts. Officer Lowe begins conducting the field sobriety tests in the turn lane where
Eayrs‟s car and his patrol car are stopped. After Eayrs performs the tests, he places her
under arrest for DUI.
As the video recording of the stop was playing during the motion hearing, Officer
Lowe identified the two individuals who exited Eayrs‟s vehicle as Kerri Sorenson and
Bradley Butler. Officer Lowe stated that he activated his blue lights as he pulled in
behind Eayrs‟s car. He explained why the physical altercation between Butler and
Sorenson did not appear on the video recording:
I was facing the red light [and] I pull up to the stop bar. I‟m looking at—
prior to pulling up and stopping, I look down the road and see them outside
their car, [they] appear to be in . . . an altercation. I stopped my vehicle and
I continue to watch them to the right of my vehicle that my camera is facing
toward.
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Officer Lowe stated that he turned on his blue lights “[f]or the safety of [Sorenson]
standing outside the vehicle and my safety while in the lane of traffic.” He then began
investigating a possible domestic assault.
Officer Lowe said he did not recall testifying in General Sessions Court that
everything he observed the night of Eayrs‟s arrest was captured on the video recording
from his patrol car. As he was stopped at the red light, Officer Lowe saw Sorenson and
Butler moving back toward the vehicle and when he turned, everything he observed was
captured on the video recording. He stated that once he turned on his blue lights, his
camera activated to a point several seconds earlier, and the video recording showed
Butler stepping out of the vehicle. Although he acknowledged that Eayrs‟s car was a
two-door vehicle, which required a person in the back seat to lower the front seat before
exiting the car, Officer Lowe asserted that Butler had already exited the car one time and
had gotten back inside before exiting the car a second time as shown on the recording.
He acknowledged that he did not state in his police report that he saw Sorenson and
Butler having an altercation before they moved toward the vehicle to get back inside.
When asked if he had documented seeing Sorenson and Butler get out of the vehicle, get
back in, and then get out again, Officer Lowe stated that he would have to refer to his
notes before answering that question.
At that point, the trial court interjected:
Gentlemen, I‟m going to cut through it all. Regardless of whether he
saw them out and get back in or in and getting out, the video clearly shows
that this vehicle driven by this defendant was illegally parked in a turn lane
constituting a traffic hazard and is a violation for parking in a turn lane for
people getting in and out of a vehicle. So this officer had not only probable
cause, but a duty to stop. He observed that violation which I see on the
video. End of story. Motion denied.
When defense counsel stated that he had testimony from Sorenson and Butler that he
wished to present, the court stated:
Doesn‟t make a bit of difference if they‟re the people that are in and
out of the car. That vehicle is illegally parked in a turn lane in a lane of
travel constituting a traffic hazard. This officer had a duty and obligation to
stop and make an investigation. I don‟t know what else could be shown or
disputed about that. Whether they were fighting or kissing makes no
difference.
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When defense counsel asked to make an offer of proof regarding Sorenson‟s and Butler‟s
testimony, the court replied, “[There is] no point whatsoever because regardless of what
they say [it] makes no difference. That car is illegally parked in the middle of the
traveled portion of the highway, period.” Defense counsel then stated, “[F]or the record,
I have Bradley Butler here to testify and his testimony would be that he had not exited the
vehicle prior to the officer turning his blue lights on and Kerri Sorenson who is on the
video as well to testify to the same.” The trial court stated that even if that was the
testimony from those witnesses, it made no difference because Eayrs‟s vehicle “was
illegally parked with people getting in and out of it in the middle of the highway.” The
court again denied the motion to suppress and to dismiss the charge.1 The record shows
that the trial court never identified the statute or ordinance on which it relied to deny the
suppression motion.
Immediately after the trial court announced its ruling, defense counsel informed
the court that the parties had reached an agreement, based on the denial of the motion, to
“enter into a plea and reserve the issue for the Court of Criminal Appeals as to the
legality of the stop.” Defense counsel asked for additional time to enter the plea so that
the appropriate documents could be prepared.
Plea Submission Hearing. At the September 22, 2014 plea submission hearing,
defense counsel informed the court that Eayrs would be entering a guilty plea but would
be reserving certified questions pursuant to Tennessee Rule of Criminal Procedure
37(b)(2). He added that he and the State had reviewed the language of the certified
questions and had determined that they were dispositive of the case. Defense counsel
stated that the certified questions were ready to file contemporaneously with the
judgment of conviction. The State provided the details regarding the plea agreement, and
Eayrs entered a guilty plea to DUI. The State stipulated the evidence it would have
presented had the case gone to trial, and Eayrs acknowledged that she expected the
State‟s witnesses to testify in accordance with this stipulation. The trial court accepted
Eayrs‟s guilty plea and sentenced her pursuant to the plea agreement to a sentence of
eleven months and twenty-nine days, which was suspended to probation after the service
of forty-eight hours of incarceration. Defense counsel informed the court that he had
several agreed orders that he would be filing on Eayrs‟s behalf that day. The judgment of
conviction and the agreed order, which were both entered on September 22, 2014,
reserved the following certified questions of law pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2):
1
The transcript from the motion to suppress hearing reflects that the trial court denied this
motion, although the appellate record contains no entry of an order denying the motion to suppress.
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(1) Whether the Trial Court erred by holding that Officer Lowe had
probable cause or reasonable suspicion to stop the Defendant‟s vehicle for
being “illegally parked in a turn lane.”
(2) Whether Officer Lowe had any reasonable suspicion to support the
traffic stop of the Defendant when he observed no moving violations of the
rules of the road.
(3) Whether Officer Lowe had reasonable suspicion to stop the Defendant‟s
vehicle for suspected domestic assault.
Eayrs filed a timely notice of appeal on October 20, 2014.
ANALYSIS
Eayrs argues that the trial court erred in holding that the officer had probable cause
or reasonable suspicion to stop her for being “illegally parked in a turn lane,” that the
officer did not have reasonable suspicion to support his traffic stop of her when he
observed no moving violations of the rules of the road, and that the officer did not have
reasonable suspicion to stop her vehicle for suspected domestic assault. After reviewing
the record, we conclude that Eayrs is entitled to a reversal of her conviction and a
dismissal of the indictment in light of the first certified question.
Tennessee Rule of Criminal Procedure 37(b)(2)(A) allows for an appeal from any
order or judgment on a conditional plea of guilty or nolo contendere if the defendant
reserves, with the consent of the state and the court, the right to appeal a certified
question of law that is dispositive of the case, so long as the following four requirements
are met:
(i) the judgment of conviction or other document to which such judgment
refers that is filed before the notice of appeal, contains a statement of the
certified question of law that the defendant reserved for appellate review;
(ii) the question of law is stated in the judgment or document so as to
identify clearly the scope and limits of the legal issue reserved;
(iii) the judgment or document reflects that the certified question was
expressly reserved with the consent of the state and the trial court; and
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(iv) the judgment or document 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. P. 37(b)(2)(A).
Initially, we must consider whether this court has jurisdiction to review the
certified questions of law given that the judgment of conviction does not reference the
separate agreed order. The record shows that the judgment in this case was entered on
September 22, 2014. The Special Conditions box of the judgment contains the following
information relevant to the certified questions of law:
Sentence is stayed pending appeal on following certified questions: 1.
Whether the Trial Court erred by holding that Office Lowe had probable
cause or reasonable suspicion to stop the Defendant‟s vehicle for being
“illegally parked in a turn lane.” 2. Whether Officer Lowe had any
reasonable suspicion to support the traffic stop of the Defendant when he
observed no moving violations of the rules of the road. 3. Whether Officer
Lowe had reasonable suspicion to stop the Defendant‟s vehicle for
suspected domestic assault.
The record also shows that a separate “Agreed Order Reserving Certified Questions of
Law for Appellate Review pursuant to Tenn. R. Crim. P.37(b)(2)” was entered on
September 22, 2014, the same date that the judgment of conviction was entered. This
agreed order states that the trial court “expressly incorporates this order by referencing
into the Judgment entered in this case as though the same had been fully and completely
stated therein.” The agreed order then restates the above certified questions of law and
indicates that the trial court, the State, and the defendant consented to the reservation of
the certified questions of law as a part of the plea agreement and believed that the
certified questions were dispositive of the case. However, the judgment of conviction
does not specifically incorporate this agreed order by reference.
The Tennessee Supreme Court clearly outlined the requirements for reserving a
certified question of law in State v. Preston:
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 T.R.A.P. 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
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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. 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 Tenn.
R. Crim. P. 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.
759 S.W.2d 647, 650 (Tenn. 1988) (emphasis added). As the Tennessee Supreme Court
emphasized, “Preston puts the burden of reserving, articulating, and identifying the issue
upon the defendant.” State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). This
court will not consider any issue beyond the scope of the certified question. State v. Day,
263 S.W.3d 891, 900 (Tenn. 2008).
In State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003), the Tennessee Supreme
Court held that it had “never applied a substantial compliance standard to the Preston
requirements[.]” Instead, it reiterated that the Preston requirements regarding Rule 37
were “„explicit and unambiguous.‟” Id. (quoting State v. Irwin, 962 S.W.2d 477, 479
(Tenn. 1998); Pendergrass, 937 S.W.2d at 837).
However, in Irwin the Tennessee Supreme Court relaxed the Preston requirements
slightly by allowing a certified question to be set out in an independent document, so long
as the independent document is incorporated by reference into the judgment. Irwin, 962
S.W.2d at 479 (stating that a judgment may refer to, or incorporate, an independent
document, thereby satisfying the requirements of Preston). The court later held that
corrective orders are permissible when a certified question has been omitted from a
judgment; however, such orders must be filed while the trial court retains jurisdiction.
See Armstrong, 126 S.W.3d at 912-13. Once a notice of appeal is filed, the jurisdiction
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becomes vested in the appellate court, and the trial court may not amend its judgment.
Pendergrass, 937 S.W.2d at 837.
The transcripts from the suppression hearing and the guilty plea submission
hearing clearly show that Eayrs intended to enter a guilty plea pursuant to Rule
37(b)(2)(A). In addition, the form waiving a jury trial and entering a guilty plea and the
plea agreement form, which were also filed on September 22, 2014, both indicate that
Eayrs was entering her guilty plea with the intent to reserve certified questions of law
pursuant to Rule 37(b)(2) and that she was contemporaneously filing an Agreed Order
reserving these certified questions. We note that the Tennessee Supreme Court has
emphasized achieving “„the dual goals of avoiding technicality and expediting a just
resolution of the case on its merits.‟” State v. Byington, 284 S.W.3d 220, 223 (Tenn.
2009) (quoting State v. Housler, 167 S.W.3d 294, 296 (Tenn. 2005)). The agreed order
follows the Preston requirements for certified questions of law, was signed by the both
parties and the trial court, and was filed the same day the judgment in this case was
entered. See Armstrong, 126 S.W.3d at 912 (concluding that a corrective nunc pro tunc
order entered after the final judgment but prior to the filing of the notice of appeal and
that complied with the requirements of Preston was sufficient to establish jurisdiction in
this court even though the original judgment did not make reference to a certified
question of law); State v. Bethany R. Mercer, No. E2009-00003-CCA-R3-CD, 2009 WL
4931344, at *2 (Tenn. Crim. App. Dec. 22, 2009) (concluding that a final order that
satisfied the Preston requirements and was filed contemporaneously with the judgment of
conviction was sufficient to properly reserve the certified question of law even though the
judgment did not incorporate this final order by reference); State v. Paul Anthony Wright,
No. W2001-02574-CCA-R3-CD, 2003 WL 1860526, at *5-6 (Tenn. Crim. App. Apr. 7,
2003) (holding that when a judgment of conviction does not comply with the Preston
requirements, a contemporaneously filed separate order may be sufficient to cure the
defects of the judgment even though the order is not referenced in the judgment form).
Therefore, we conclude that the certified questions of law in this case were properly
reserved even though the judgment of conviction did not incorporate by reference the
contemporaneously filed agreed order. We note that the judgment did recite the certified
questions.
Next, we must consider the merits of the three certified questions reserved. Eayrs
argues that the trial court erred in holding that the officer had probable cause or
reasonable suspicion to stop her for being “illegally parked in a turn lane,” that the officer
did not have any reasonable suspicion to support his traffic stop of her when he observed
no moving violations of the rules of the road, and that the officer did not have reasonable
suspicion to stop her vehicle for suspected domestic assault.
When reviewing a trial court‟s findings of fact and conclusions of law on a motion
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to suppress evidence, this court is guided by the standard of review recognized in State v.
Odom, 928 S.W.2d 18 (Tenn. 1996). Pursuant to this standard, “a trial court‟s findings of
fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. at 23. The prevailing party in the trial court “is entitled to the strongest
legitimate view of the evidence adduced at the suppression hearing as well as all
reasonable and legitimate inferences that may be drawn from that evidence.” Id.
Moreover, “[q]uestions of credibility 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.” Id. Despite the deference given to trial court‟s findings of fact,
this court reviews the trial court‟s application of the law to the facts de novo with no
presumption of correctness. State v. Montgomery, 462 S.W.3d 482, 486 (Tenn. 2015)
(citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)); Day, 263 S.W.3d at 900 (citing
State v. Williams, 185 S.W.3d 311, 315 (Tenn. 2006); State v. Yeargan, 958 S.W.2d 626,
629 (Tenn. 1997)).
As we previously noted, one of the requirements for a certified question pursuant
to Rule 37(b)(2) is that “the defendant, the state, and the trial court are of the opinion that
the certified question of law is dispositive of the case.” Tenn. R. Crim. P.
37(b)(2)(A)(iv). A question is dispositive of the case “„when the appellate court must
either affirm the judgment [of conviction] or reverse and dismiss [the charges].‟” State v.
Dailey, 235 S.W.3d 131, 134 (Tenn. 2007) (quoting Walton, 41 S.W.3d at 96) (internal
quotation marks omitted); see State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App.
1984)). “A question is never dispositive when we might reverse and remand[.]” Wilkes,
684 S.W.2d at 667.
In this case, the parties and the trial court agreed that all three certified questions
were dispositive of the case. However, it is well-established that this court “„is not bound
by the determination and agreement of the trial court, a defendant, and the State that a
certified question of law is dispositive of the case.‟” Dailey, 235 S.W.3d at 134-35
(quoting State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003)); Preston,
759 S.W.2d at 651. Instead, this court “must make an independent determination that the
certified question is dispositive.” Id. (citing Preston, 759 S.W.2d at 651). Therefore, the
appropriate inquiry is whether “„the record on appeal demonstrates how [the certified]
question is dispositive of the case.‟” Id. (quoting Preston, 759 S.W.2d at 651). This
court will not accept jurisdiction when the certified question of law is not dispositive of
the case. Walton, 41 S.W.3d at 96.
In the first certified question, Eayrs argues that the trial court erred in holding that
the arresting officer had probable cause or reasonable suspicion to stop her for being
“illegally parked in a turn lane.” We previously recognized that no order denying the
motion to suppress was included in the appellate record. At the suppression hearing, the
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trial court held that regardless of whether Officer Lowe “saw them out and get back in or
in and getting out, the video clearly show[ed] that this vehicle driven by this defendant
was illegally parked in a turn lane constituting a traffic hazard[.]” Consequently, the trial
court held that Officer Lowe “had not only probable cause, but a duty to stop.” When
defense counsel attempted to make an offer of proof by having Sorenson and Butler
testify, the court replied: “[There is] no point whatsoever because regardless of what
they say [it] makes no difference. That car is illegally parked in the middle of the
traveled portion of the highway, period.” Although the trial court was adamant that a
violation of the law had occurred, it never identified the statute or ordinance that Eayrs
apparently violated, and a specific statute or ordinance was never referenced by either
party. The State argues, and we agree, that a trial court cannot sua sponte take judicial
notice of a municipal ordinance.2 See Tenn. R. Evid. 202(b)(3) (stating that “[u]pon
reasonable notice to adverse parties, a party may request that the court take, and the court
may take, judicial notice of . . . all duly enacted ordinances of municipalities or other
governmental subdivisions”); State v. Chearis, 995 S.W.2d 641, 643 (Tenn. Crim. App.
1999) (noting that pursuant to Rule 202(b)(3), neither the trial court nor the appellate
court could take judicial notice of a municipal ordinance). In this case, the trial court
effectively cut short the proof at the suppression hearing, thereby precluding the
development of issues related to the motion. It then reached a decision to deny the
motion without identifying the particular statute or ordinance on which it relied and
without allowing argument as to whether a violation of that statute or ordinance made the
stop in this case legal.
In considering this issue, we distinguish this case from State v. Jon Michael
Johnson, No. M2014-01834-CCA-R3-CD, 2015 WL 6164009, at *5 (Tenn. Crim. App.
Oct. 21, 2015), which held that the certified question was not dispositive of the case
because the trial court‟s ruling neither admitted nor excluded the evidence in question. In
Eayrs‟s case, the trial court clearly ruled that the evidence stemming from the stop was
admissible even though the court did not identify the statute or ordinance that Eayrs
apparently violated. The record does not provide any guidance as to the law the trial
court believed Eayrs violated, and we cannot speculate as to which law or ordinance the
trial court was referring. Although the trial court held that the Officer Lowe had probable
cause to stop Eayrs because she was parked in a turn lane on a highway, Officer Lowe
never testified that he made the stop because of a traffic violation; instead, he testified
that he stopped Eayrs‟s vehicle based on an alleged domestic assault between her
passengers. Because the record does not establish the basis for the trial court‟s denial of
the motion, we are constrained to conclude that the trial court erred in denying the motion
to suppress. Accordingly, the trial court‟s judgment is reversed. Because a certified
2
The State notes that Pigeon Forge, the city in which this stop occurred, “has a municipal
ordinance that prohibits parking in or within 15 feet of an intersection.” See PIGEON FORGE, TENN.,
CODE § 15-604 (2015).
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question must be dispositive of the case and because we agree that Eayrs‟s first certified
question is dispositive, the charge against Eayrs is dismissed.
In the event of further appellate review, we will also address the remaining
certified questions. The second certified question of law concerns whether the officer
had any reasonable suspicion to support the traffic stop of Eayrs when he observed no
moving violations of the rules of the road. The transcript from the suppression hearing
shows that Officer Lowe never testified that he observed any moving or non-moving
traffic violations; instead, he stated that he initiated the stop of Eayrs based on an alleged
domestic assault between her passengers. When reviewing a certified question of law,
this court is “limited to those [issues] passed upon by the trial judge[.]” See Preston, 759
S.W.2d at 650. Because the issue of whether the officer had reasonable suspicion to stop
Eayrs when he observed no moving violations was not passed upon by the trial court at
the suppression hearing, we conclude that this certified question is not dispositive of the
case.
The third certified question, whether the officer had reasonable suspicion to stop
Eayrs‟s vehicle for suspected domestic assault, is also not dispositive of the case. Here,
the trial court declined to rule on whether Officer Lowe had reasonable suspicion to stop
Eayrs‟s vehicle for suspected domestic assault. Although Officer Lowe testified that he
approached Eayrs‟s vehicle because of an alleged domestic assault between Butler and
Sorenson outside the car, the video recording is devoid of any evidence that a domestic
assault occurred. Instead, Eayrs, Butler, and Sorenson all stated in the recording that
Eayrs stopped her car because Butler was about to be ill and needed switch seats. At the
suppression hearing, defense counsel attempted to make an offer of proof before asserting
that Butler and Sorenson would testify that Butler had not exited Eayrs‟s vehicle before
Officer Lowe activated his blue lights. Because the trial court did not “pass” upon the
issue raised in the third certified question, we conclude that this question also is not
dispositive of the case.
CONCLUSION
In light of the foregoing and the record as a whole, the judgment of the trial court
is reversed, Eayrs‟s guilty plea is vacated, and the indictment is dismissed.
_________________________________
CAMILLE R. McMULLEN, JUDGE
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