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State v. Mullican

Court of Criminal Appeals of Tennessee, Nashville

March 4, 2015

STATE OF TENNESSEE
v.
CHARLIE E. MULLICAN

Assigned on Briefs December 9, 2014.

Appeal from the Circuit Court for Warren County No. M14237 Larry B. Stanley, Jr., Judge.

Bud Sharp, McMinnville, Tennessee, for the appellant, Charlie E. Mullican.

Herbert H. Slatery, III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Lisa S. Zavogiannis, District Attorney General; and Darrel Julian, Assistant District Attorney General; for the appellee, the State of Tennessee.

Thomas T. Woodall, P. J., delivered the opinion of the Court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.

OPINION

THOMAS T. WOODALL, PRESIDING JUDGE.

Background

After he was indicted for second offense DUI, second offense driving with a blood or breath alcohol content of 0.08% or greater, possession of a handgun while under the influence of intoxicants, and violation of the light law, Defendant filed a motion to suppress all evidence obtained as a result of the vehicle stop which led to his arrest. In the motion, Defendant asserted that the stop of his vehicle was not based upon reasonable suspicion. A suppression hearing was held, and the trial court denied the motion. Defendant entered his guilty plea but reserved for appeal, pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A)(i)-(iv), the following certified question of law:

Whether the State of Tennessee had reasonable suspicion to stop the Defendant's automobile at night time when both headlights are required to be on and working because of the officer's belief based on his perception that there was a headlight inoperable; that upon further investigation conducted by the defendant and his attorney in the presence of a detective both headlights were found to be in working condition some months later after the vehicle was seized by the State the night of the stop and had been stored at a unsecured impound lot; accordingly, whether this stop and all evidence from this stop should be suppressed.

Facts

Officer Eddie Caldwell of the McMinnville Police Department testified that at approximately midnight on May 4, 2013, he was on patrol on "New Smithville and the bypass" when he observed a silver Honda with the driver's side headlight out traveling southbound on New Smithville Highway. Officer Caldwell proceeded through the red light where he had been stopped and followed the car into the Waffle House parking lot and made contact with Defendant who was driving the vehicle. Defendant's car was taken to the police department's impound lot.

Officer Stuart Whitman testified that within "a couple months" before the suppression hearing on January 22, 2014, he met with Defendant's trial counsel at the impound lot to look at Defendant's car. Officer Whitman turned the headlights on, and at that time, both headlights were working.

On cross-examination, Officer Whitman testified that the City of McMinnville's impound lot was located behind the Public Works Building on Belmont Drive, and the property was also shared with the animal control division. He noted that there was a fence surrounding the lot with two gates "going into the impound lot there." Officer Whitman testified that the gates were unlocked during business hours, and he did not know if they were locked after business hours. He did not know if there was any surveillance equipment on the lot. Officer Whitman also noted that there was no lighting in the back corner of the property and that Defendant's vehicle was parked in the far left corner of the lot. Officer Whitman did not know who had access in and out of the property. He noted that the gates to the property are unguarded. On redirect examination, Officer Whitman testified that there had been previous thefts from some of the vehicles parked in the impound lot.

Defendant testified that on the night of his arrest, both headlights on his vehicle were in working order, and he told Officer Caldwell that they were both working. Defendant testified that he later accompanied an officer to the impound lot to retrieve some of his belongings but he never ...


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