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State v. Catalano

Court of Criminal Appeals of Tennessee, Nashville

December 18, 2017

STATE OF TENNESSEE
v.
STEVEN DAVID CATALANO

          Session May 9, 2017

         Appeal from the Circuit Court for Williamson County No. I-CR160221 Joseph Woodruff, Judge No. M2016-02272-CCA-R3-CD

         The Appellant, Steven David Catalano, entered a plea of nolo contendere to driving under the influence (DUI), reserving a certified question of law challenging whether a be-on-the-lookout report (BOLO) issued by a Brentwood police officer provided sufficient probable cause or reasonable suspicion to justify a Franklin police officer's traffic stop of the Appellant's vehicle. The State contends that the question presented is not dispositive; therefore, this court is without jurisdiction to consider the appeal. Upon review of the record and the parties' briefs, we agree with the State and conclude that the appeal must be dismissed.

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

          Grover Christopher Collins, Nashville, Tennessee, for the Appellant, Steven David Catalano.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         On April 11, 2016, the Williamson County Grand Jury returned an indictment charging the Appellant with DUI and DUI per se, which is driving under the influence with a blood alcohol content of .08% or greater. See Tenn. Code Ann. § 55-10-401(1), (2). Thereafter, on July 13, 2016, the Appellant filed a motion to suppress evidence regarding his seizure and the resulting blood alcohol test, arguing that the officer did not have reasonable suspicion or probable cause to justify the traffic stop.

         At the suppression hearing, Officer Stan Boyd, Jr., with the Brentwood Police Department testified that at 2:42 a.m. on June 14, 2015, he was traveling southbound on Interstate 65 north of Concord Road when he saw a dark-colored sport utility vehicle (SUV) cross the right and left sides of its lane of travel multiple times. Officer Boyd saw no other vehicles nearby and noticed nothing on the road to justify the SUV's failure to maintain its lane of traffic. Officer Boyd said that he was unable to stop the vehicle because he was transporting someone to the Williamson County Jail. When he was unable to find other Brentwood officers in the area, he provided the Franklin Police Department's dispatcher with "a description of the vehicle[, ] . . . the tag information of the vehicle and the last direction of traffic once it exited." Officer Boyd followed the SUV until it took the eastbound Cool Springs Boulevard exit. Officer Boyd said that he spoke with the Franklin Police Department's dispatcher no later than 2:46 a.m.

         Officer Boyd said that he video recorded the SUV's erratic driving. As the video was played for the court, Officer Boyd explained what was transpiring on the video. Officer Boyd said that the section of the interstate on which the SUV was traveling had four lanes in each direction. The first lane was identified as the far right lane, the second lane was located to the left of the first lane, the third lane was to the left of the second lane, and the high occupancy vehicle lane was to the left of the third lane. The SUV was traveling in the second lane. The video showed that the SUV crossed the left "dashed line, " returned to the second lane, drifted to the right twice, then drifted left and "hover[ed]" in both the second and third lanes. The SUV slowed then gradually increased its speed and drifted far enough to the right that both passenger side tires were completely over the line into the first lane. Officer Boyd said that "half of the car [was] over both lanes." The SUV continued to drift from side to side and did not signal its lane changes. Officer Boyd said that the SUV "put[] its right signal on at this point, drift[ed] over, or ma[de] a lane change and then suddenly drift[ed] back over a solid white line right in front of me with no direction, " which forced the officer to decrease his speed. The vehicle then took the eastbound exit onto Cool Springs Boulevard. The video did not show the vehicle after it left the exit ramp.

         On cross-examination, Officer Boyd said that as he was following the Appellant's vehicle, he told the Franklin Police Department's dispatcher "what I was observing, a vehicle failing to maintain its lane multiple times, exiting eastbound onto Cool Springs Boulevard, and the tag number." Officer Boyd did not recall whether he told the dispatcher if the SUV was a "dark color or black" and thought he may have told the dispatcher that the SUV was a Ford Explorer.

          Officer Adam Cohen with the Franklin Police Department testified that around 2:46 a.m., he was in the middle of a traffic stop at the intersection of Interstate 65 and Cool Springs Boulevard when he heard a BOLO from a Brentwood police officer regarding a "possible intoxicated driver" traveling southbound on Interstate 65 just south of Moores Lane. Officer Cohen gave the person he had stopped a "verbal warning" and let him go. He then drove "westbound on Cool Springs Boulevard to get on to southbound on Interstate 65" to look for the subject of the BOLO. However, he made a "U-turn" when he heard the Brentwood officer relay that the vehicle, a ...


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