        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 8, 2016

           STATE OF TENNESSEE v. JEFFREY WAYNE MOORE

                 Appeal from the Criminal Court for Wilson County
                   No. 14CR387      John D. Wootten, Jr., Judge


                 No. M2015-01229-CCA-R3-CD – Filed May 24, 2016


The Defendant-Appellant, Jeffrey Wayne Moore, entered a guilty plea to driving under
the influence (DUI) in exchange for a sentence of eleven months and twenty-nine days to
be served on probation after the service of forty-eight hours in jail. As a condition of his
plea, Moore reserved a certified question of law challenging the denial of his motion to
suppress, which was based upon an alleged unconstitutional seizure. Following our
review, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and D. KELLY THOMAS, JR., J., joined.

Russell E. Edwards, Hendersonville, Tennessee, for the Defendant-Appellant, Jeffrey
Wayne Moore.

Herbert H. Slatery III, Attorney General and Reporter; Zachary Thomas Hinkle, Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Linda D. Walls,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

        On August 3, 2013, Moore was stopped by Deputy Jason Anderson of the Wilson
County Sheriff‟s Department on suspicion of DUI. After failing to adequately perform
several field sobriety tests, Deputy Anderson arrested Moore for driving under the
influence of an intoxicant. Moore later filed a motion to suppress, arguing that Deputy
Anderson lacked reasonable suspicion to support the stop. After a hearing, the trial court
denied the motion, and Moore subsequently entered a negotiated guilty plea. Pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2), Moore properly reserved the following
certified question of law for our review:
      Whether the deputy sheriff who pulled over the Defendant had reasonable
      suspicion to believe that the Defendant was engaged in criminal activity
      prior to stopping the Defendant.

        At the February 3, 2015 suppression hearing, Deputy Anderson testified that he
was travelling westbound on Saundersville Road, a two-lane road in Wilson County
when he observed a “brown or black Dodge truck” travelling towards him in what
appeared to be the middle of the road. As Deputy Anderson neared the vehicle, the driver
swerved off the side of the road, prompting him to turn around, activate his lights, and
pursue the vehicle. As he caught up to the vehicle, Anderson observed the driver swerve
off the side of the road a second time, nearly hitting a mailbox, before correcting.

      On cross-examination, Deputy Anderson admitted that not all of his observations
were captured by his in-car camera.

       At the conclusion of the suppression hearing, the trial court orally denied Moore‟s
motion to suppress. In denying the motion, the trial court credited Deputy Anderson‟s
testimony that he observed Moore‟s vehicle travelling down the center of the roadway
and then drift off the side of the road. Based on these observations, the trial court
determined that Deputy Anderson had reasonable suspicion to initiate the stop.

                                      ANALYSIS

       In this appeal, Moore contends that Deputy Anderson lacked reasonable suspicion
to initiate a stop of his vehicle. Specifically, he argues that the only specific and
articulable fact justifying the stop is Deputy Anderson‟s observation of Moore‟s vehicle
“partially leaving the roadway” which he describes as “a narrow, winding, two-lane
road.” The State responds that the trial court properly denied Moore‟s motion to suppress
based on Deputy Anderson‟s testimony that he observed Moore‟s vehicle travelling down
the center of a two-lane road before veering off the road on two separate occasions. We
agree with the State‟s position that the judgment should be affirmed because Deputy
Anderson observed Moore‟s vehicle travel down the center of the road and veer off the
road one time prior to activating his blue lights.

       The standard of review applicable to suppression issues involves a mixed question
of law and fact. State v. Garcia, 123 S.W.3d 335, 342 (Tenn. 2003). “A trial court‟s
findings of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” State v. Williams, 185 S.W.3d 311, 314 (Tenn. 2006) (citing State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996)). The Tennessee Supreme Court explained this
standard:


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       Questions 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. The party prevailing 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. So long as the greater weight of the
       evidence supports the trial court‟s findings, those findings shall be upheld.

Odom, 928 S.W.2d at 23. However, this court‟s review of a trial court‟s application of
the law to the facts is de novo with no presumption of correctness. State v. Walton, 41
S.W.3d 75, 81 (Tenn. 2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn.
1999)). The defendant bears the burden of showing that the evidence preponderates
against the trial court‟s findings. Odom, 928 S.W.2d at 23; State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997).

        Moore argues that this court should review his case under the de novo standard
applied in State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000), because the trial court‟s
ruling “involves a question of law and credibility is really not an issue.” Significantly
however, Binette applies only “when a trial court‟s findings of fact on a motion to
suppress are based solely on evidence that does not involve issues of witness credibility.”
Id. For example, in Binette the State relied solely on video evidence to justify an
investigatory stop and did not present any live testimony. Id. The trial court‟s
determination in this case, however, involved both videotape evidence as well as the live
testimony from Deputy Anderson, thereby requiring the trial court to assess Anderson‟s
credibility. Accordingly, we will apply the preponderance standard described in Odom to
the trial court‟s determination in this case.

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect citizens from unreasonable searches and seizures.
See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. A warrantless search or seizure is
presumed unreasonable and evidence obtained as a result will be suppressed “unless the
prosecution demonstrates by a preponderance of the evidence that the search or seizure
was conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement.” Yeargan, 958 S.W.2d at 629 (citing Coolidge v. New Hampshire, 403 U.S.
443, 454-55 (1971)).

        The stop of a vehicle and detention of individuals during the stop amounts to a
seizure for purposes of both the Fourth Amendment to the United States Constitution and
article I, section 7 of the Tennessee Constitution, and thus is subject to the reasonableness
requirement. Whren v. United States, 517 U.S. 806, 809-10 (1996); Binette, 33 S.W.3d
at 218. However, a well-established exception to the warrant requirement is for an
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investigatory stop based upon “a reasonable suspicion, supported by specific and
articulable facts, that a criminal offense has been or is about to be committed.” Terry v.
Ohio, 392 U.S. 1, 21 (1968). Probable cause is not required for an investigatory stop.
State v. Coleman, 791 S.W.2d 504, 505 (Tenn. Crim. App. 1989) (citing Terry, 392 U.S.
at 27; Hughes v. State, 588 S.W.3d 296, 305 (Tenn. 1979)).

        The Tennessee Supreme Court has defined reasonable suspicion as “a
particularized and objective basis for suspecting the subject of a stop of criminal
activity.” Binette, 33 S.W.3d at 218 (citing Ornelas v. United States, 517 U.S. 690, 696
(1996)). “The level of reasonable suspicion required to support an investigatory stop is
lower than that required for probable cause.” State v. Day, 263 S.W.3d 891, 902 (Tenn.
2008) (citing Alabama v. White, 496 U.S. 325, 330 (1990)). However, reasonable
suspicion requires “a particularized and objective basis for suspecting the subject of a
stop of criminal activity.” Binette, 33 S.W.3d at 218. That basis must constitute
“something more than the officer‟s „inchoate and unparticularized suspicion or hunch,‟”
and must be based on “specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Day, 263 S.W.3d at 902
(quoting Terry, 392 U.S. at 27). In determining whether a reasonable suspicion existed to
justify an investigatory detention, the court must consider the totality of the
circumstances. Day, 263 S.W.3d at 903.

      In denying the motion to suppress, the trial court stated:

      [T]he video doesn‟t really show much other than it does capture the officer
      turning around, but one thing that this Court has to look at is testimony of
      the officer [about] what drew his attention. He said it appeared that the
      vehicle was in the center of the roadway as it approached him, and then as
      he used the word „merged,‟ but my word is veered more to the proper area,
      that being the defendant‟s vehicle‟s right lane, and then the significant part
      of this is that it went off the – let‟s call it the typical travel area that a
      vehicle would be on and kicked up debris or dust. The officer testified he
      saw that.

      Probable cause is – or a reasonable suspicion, either one of those two, it
      doesn‟t take proof beyond a reasonable doubt to justify a stop. In this case,
      that‟s reason to investigate, reason to stop. It‟s a good stop.

Upon our review of the record, we conclude that the evidence does not preponderate
against the trial court‟s denial of Moore‟s motion to suppress. Deputy Anderson testified
that he observed Moore travelling toward him in the middle of a two-lane road. This
observation alone, accredited by the trial court, justifies the stop of Moore‟s vehicle
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under the recent Tennessee Supreme Court case State v. William Whitlow Davis, Jr., __
S.W.3d __ , No. E2013-02073-SC-R11-CD, 2016 WL 537069, at * 7 (Tenn. Feb. 11,
2016) (holding that an officer had probable cause to stop a motorist that the officer
observed cross the center lane line a single time). Moreover, Deputy Anderson testified
that he subsequently observed Moore veer off the side of the road once before he initiated
a stop and once after he activated his blue lights. The fact that only the second occasion
was captured on the dash-cam video is of no avail, as the trial court accredited Deputy
Anderson‟s testimony in finding that he had, at minimum, reasonable suspicion to
conduct an investigatory stop. Our review of the record does not preponderate against
that finding and, accordingly, Moore is not entitled to relief.

                                    CONCLUSION

       Based on the above authority and analysis, the judgment of the trial court is
affirmed.



                                                 _________________________________
                                                 CAMILLE R. McMULLEN, JUDGE




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