IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 10, 2006
STATE OF TENNESSEE v. BERNARDINO LIRA, also known as
JOSE FERNANDEZ
Direct Appeal from the Criminal Court for Shelby County
No. 03-07573 W. Otis Higgs, Judge
No. W2005-00683-CCA-R3-CD - Filed March 1, 2006
The defendant, Bernardino Lira, pled guilty to DUI, third offense, and driving on a revoked license,
receiving concurrent sentences of eleven months and twenty-nine days and ten days, with all but four
months suspended. He reserved as a certified question whether the trial court erred in denying his
motion to suppress the fruits of the stop of his vehicle. We conclude that the question is properly
certified and that the trial court ruled correctly in denying the motion to suppress.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.
Leslie I. Ballin and Gray W. Bartlett, Memphis, Tennessee, for the appellant, Bernardino Lira, also
known as Jose Fernandez.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Kirby May and David Zak, Assistant District
Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTS
Following the defendants’s indictment for various charges resulting from the stop of his
vehicle on June 29, 2003, he filed a motion to suppress, arguing that Memphis Police Officer
Courtney Cunningham did not have cause to stop his vehicle. At the evidentiary hearing on the
motion to suppress, Officer Cunningham testified that he had been a Memphis police officer for two
years and described how officers were trained at the police academy to identify impaired drivers:
We were told some signs that you can look for in someone who is driving
while impaired, or intoxicated. They may have their lights off, brake lights off,
headlights. They may have a turn signal on when they shouldn’t, or the wrong way.
They could have unusual speeds. They could have unusual driving habits, such as
sudden acceleration, sudden breaking [sic], stopping in the middle of the road. They
could weave in and out of lanes, or in the same lane they could make wide turns, we
were told to look for. There’s a lot of different signs to look for.
Officer Cunningham said that around 4:30 a.m. on June 29, 2003, a vehicle, which he later
determined was being driven by the defendant, had caught his eye:
There was a pick-up truck that was going on Orchi. It stopped for a few
seconds in the middle of the road. There was no other traffic around. And it started
again, slowly. It went a certain distance and it stopped, again, for a few seconds. It
started, again.
I followed this vehicle. It made a wide right turn onto Chelsea and then it
made another wide right turn on to Burr and that’s when I stopped the vehicle.
He detailed two of the turns made by the defendant’s vehicle:
A. It was an unusually wide right turn. Vehicles don’t usually make a turn, quite
so wide. He was in the right lane, he went out too far, farther than cars usually go to
turn onto Chelsea to make that right turn.
Q. And then, what did you observe next, of that truck?
A. He went east on Chelsea and then made a similar turn on to Burr.
Q. Describe that turn from Chelsea on to Burr?
A. It was the same, as far as I can recall, it was the same turn. It was a wide right
turn, unusually wide.
Officer Cunningham explained why he then activated his siren and blue lights to stop the
defendant’s vehicle:
I wanted to observe what was going on with this car. I knew that there was
something unusual about it. I didn’t know – but, I thought that he was probably
intoxicated. I didn’t know if he possibly had a medical problem, possibly was casing
the area, maybe he was lost. I didn’t know what the problem was. But there was
something wrong about this vehicle, so I wanted to check on it.
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The defendant did not testify or present any proof at the evidentiary hearing.
ANALYSIS
On appeal, the sole issue presented by the defendant in his certified question is his claim that
the trial court erred in overruling his motion to suppress. The State responds both that the question
is not properly before this court and that, in any event, the trial court did not err in its ruling.
I. Reservation of Certified Question
The judgment form entered in this matter on March 17, 2005, states, “The defendant reserves
the following certified question of law, as referred to in the Rule 37(b)(2)(i) consent order, which
is hereby incorporated by reference: ‘Did the court err in denying the defendant’s motion to suppress
this stop of his motor vehicle on June 29, 2003?’” The consent order, also entered on March 17,
2005, sets out the certified question as stated on the judgment forms and states that the defendant,
the State, and the trial court all agree that the certified question is dispositive of the charges. The
State argues on appeal that the certified question “does not clearly identify the reasons [the]
defendant gave at the suppression hearing to contest the seizure.” We note that the defendant’s
motion to suppress, contained in the technical record, objects that the defendant was stopped
“without benefit of a warrant, without probable cause, and without any other justifiable reason.” The
defendant’s supplemental motion to suppress refers to an attached exhibit, “a copy of the arrest ticket
that purportedly gives the officer’s reasoning for stopping the Defendant, none of which amount to
probable cause or articulable facts that would justify the stop, search and seizure herein.”
The prerequisites for reserving a certified question of law were explained by our supreme
court in State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988):
This is an appropriate time for this Court to make explicit to the bench and
bar exactly what the appellate courts will hereafter require as prerequisites to the
consideration of the merits of a question of law certified pursuant to Tenn. R. Crim.
P. 37(b)(2)(i) or (iv). 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. . . . 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.
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In arguing that the defendant has not clearly identified his reasons for asserting that the stop
and seizure were unlawful, the State relies on the opinion of this court in State v. Nicholas J.
Johnson, No. M2000-03162-CCA-R3-CD, 2001 WL 1356369, at *2 (Tenn. Crim. App. Nov. 6,
2001), perm. to appeal denied (Tenn. Apr. 8, 2002), wherein this court held that the certified
question as to “‘the validity of the search and seizure of the’ Appellant” was so broad that its
resolution “would potentially require a complete dissertation of the law of search and seizure of
which this court is not willing to engage in absent specific boundaries circumscribed by the
Appellant.” By contrast, the defendant in the present case asserts that his vehicle was stopped
without a warrant, probable cause, or “any other justifiable reason.” We conclude that this language
sufficiently identifies and limits the issues which we must consider.
II. Validity of Stop of Defendant’s Vehicle
We now will review the basic question of this appeal, which is that the defendant’s vehicle
was stopped without warrant, probable cause, or reasonable suspicion.
In Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968), the United
States Supreme Court held that a law enforcement officer may conduct a brief, investigatory stop of
an individual if the officer has a reasonable suspicion, based on specific and articulable facts, of
criminal activity on the part of the individual. Under the Terry rationale, an officer may stop and
detain a vehicle based on the reasonable suspicion that one of its occupants is either engaged in, or
about to be engaged in, criminal activity. Ornelas v. United States, 517 U.S. 690, 693, 116 S. Ct.
1657, 1662, 134 L. Ed. 2d 911 (1996); State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998); State
v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997). Reasonable suspicion is an objective standard and
must be determined from the totality of the circumstances. United States v. Cortez, 449 U.S. 411,
417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981); Ornelas, 517 U.S. at 696, 116 S. Ct. at
1661-62. “Based upon that whole picture the detaining officers must have a particularized and
objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S.
at 417-18, 101 S. Ct. at 695. Reasonable suspicion will be found to exist only when “the events
which occurred leading up to the stop” would cause an “objectively reasonable police officer” to
suspect criminal activity on the part of the individual stopped. Ornelas, 517 U.S. at 696, 116 S. Ct.
at 1661-62.
At the conclusion of the evidentiary hearing, the trial court concluded that Officer
Cunningham had reasonable suspicion to stop the defendant’s vehicle:
According to what I understood, the officer’s testimony is that he observed
the defendant at 4:30 a.m. in his vehicle, he stopped twice on Orchi at 4:30 in the
morning and then he says he made wide, slow turns onto Chelsea and then onto Burr,
I believe another street. And he felt that that was unusual based upon the time and
the circumstances and so considering all of the facts and circumstances he pulled him
over.
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Well, the fundamental question here is whether or not he had probable cause
to pull him over. Nothing else appearing, other than what I recited for the record.
And I am going to agree with the officer, based upon all of the facts and
circumstances of this fact scenario. I’m going to overrule the motion to suppress and
we’ll set it for trial and you can certainly re-argue this to the jury.
It is obvious that the trial court accredited the testimony of Officer Cunningham, the only
witness at the evidentiary hearing. Officer Cunningham testified as to certain indicia of an
intoxicated driver, which included driving erratically and making wide turns. He observed the
defendant’s vehicle at 4:30 a.m. stopping twice, at least once in the middle of the road, moving
slowly after a few seconds, and then making two “unusually wide” right turns. Believing that the
defendant could have a medical problem, be intoxicated, or “casing the area,” Officer Cunningham
activated his siren and blue lights and stopped the defendant’s vehicle. This matter is distinguishable
from State v. Binette, 33 S.W.3d 215, 216 (Tenn. 2000) (within a two-minute period, the defendant’s
vehicle touched the center-line at least four times and made a sudden swerve within the lane) and
State v. Garcia, 123 S.W.3d 335, 338 (Tenn. 2003) (defendant’s vehicle swerved within its own
lane).
Given the facts, as we have set out, we conclude that the trial court correctly denied the
motion to suppress.
CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.
___________________________________
ALAN E. GLENN, JUDGE
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