        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  May 20, 2014 Session

             STATE OF TENNESSEE V. ROBERT LEE DRISKILL

                    Appeal from the Circuit Court of Blount County
                       No. C-18848     David R. Duggan, Judge


                  No. E2013-01783-CCA-R3-CD - Filed July 24, 2014


Robert Lee Driskill (“the Defendant”) pleaded guilty to one count of driving under the
influence (“DUI”) and one count of violating the implied consent law. Pursuant to the
Defendant’s plea agreement, the trial court sentenced the Defendant to eleven months,
twenty-nine days’ incarceration, to be suspended on supervised probation after the service
of forty-eight hours’ confinement. In conjunction with his guilty plea, the Defendant
reserved the following certified question of law: “Whether the officer’s conduct violated the
Defendant’s rights under Article I, Section 7 or the Fourth Amendment when the officer
through activating blue lights caused the Defendant to stop his moving vehicle and encounter
the officer.” Upon our thorough review of the record and applicable law, we hold that the
Defendant is entitled to no relief. Accordingly, we affirm the judgments of the trial court.

                   Tenn. R. App. P. 3 Appeal as of Right; Judgments
                             of the Circuit Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J.,
and T HOMAS T. W OODALL, J., joined.

George H. Waters, Maryville, Tennessee, for the appellant, Robert Lee Driskill.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Mike Flynn, District Attorney General; and Matthew Dunn, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                         OPINION

                          Factual and Procedural Background

        The Defendant was indicted by a Blount County Grand Jury for one count of DUI and
one count of violating the implied consent law. The Defendant filed a motion to suppress
all evidence obtained as a result of the stop.

                                    Suppression Hearing

        At the suppression hearing, Officer Kevin Fuller testified that he had been employed
with the Maryville Police Department (“MPD”) for approximately six years. Through his
employment with the MPD, he had received specialized training regarding DUI stops and
arrests. On April 13, 2009, Officer Fuller was on patrol, and he ended up driving behind the
Defendant’s vehicle at approximately 10:30 p.m. He observed the Defendant’s vehicle make
a “too narrow” left turn from the current road of travel into the center turning lane of an
adjacent road. Officer Fuller explained that the road onto which the Defendant’s vehicle
turned had five lanes: two lanes going each direction and a center turning lane. Eventually,
the Defendant’s vehicle shifted into the right lane designated for travel. Shortly thereafter,
Officer Fuller observed the Defendant’s vehicle make a “too wide” right turn, once again
turning into the center turning lane. Approximately 100 yards later, Officer Fuller observed
the following: “[T]here’s a kind of sharp left-hand turn – a left-hand curve on Broadway.
And the Defendant’s vehicle crossed the center line at that time.” He stated that the
Defendant’s vehicle “straddled the center line throughout the curve.” According to Officer
Fuller, the road on which they were traveling had only two lanes at that point: one lane
traveling in each direction. As Officer Fuller followed the Defendant, the Defendant’s
vehicle “continued to ride the center line” and “crossed the center maybe once or twice
more” before Officer Fuller stopped the Defendant. At this point, Officer Fuller stopped the
Defendant because he had “[r]easonable suspicion of DUI.” On cross-examination, Officer
Fuller stated that he had reasonable suspicion by the time the Defendant’s vehicle made the
second, right turn, but Officer Fuller waited to stop the Defendant until finding a better
location to stop.

       The State entered into evidence the video recording of the events that transpired that
evening. Upon watching the video, Officer Fuller clarified that, after the sharp curve, the
Defendant’s vehicle veered “extremely close to the line” or “on the line.” Although he
previously had testified that the Defendant’s vehicle had “crossed the center maybe once or
twice more,” he noted that the video did not show it clearly. Following this proof, the trial
court denied the Defendant’s motion to suppress. The trial court expressly credited Officer
Fuller’s testimony. The court also stated the following regarding its findings:


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               Now, let’s talk about the path of travel and what I saw. In terms of the
       left turn onto Washington, you can clearly see at the end, there is part of the
       turn that you just simply can’t see on the video because of the angle of the
       camera. But, of course, the officer was watching. And I can see in the video
       right at the end of that turn that he comes back across – “he” being the
       Defendant – comes back across the double yellow lines to get into the correct
       lane of travel going north on Washington. . . . It was a – it was a narrow turn.

               And then . . . he proceeds down the hill to where Washington and
       Broadway and Hall Road all meet and turns right onto East Broadway,
       traveling away from Maryville to the east, even part of that turn you can’t see
       on the camera. But again it’s clear that he crossed the double lines or whatever
       is there. . . . But it’s clear that he crossed it because I can see him on the video
       coming back over it, again, to get in his correct lane.

               And then I think the officer testified to about 100 yards later – I’m not
       sure exactly how far it is. It’s a fairly short distance down to that pretty sharp
       turn to the left. . . . Clearly, he was across the center line there. And I said that
       he crossed the center line by at least a foot. The officer said two feet. I think
       it very well could have been a foot and a half to two feet. . . .

       The trial court chose not to place any significance on the Defendant’s vehicle’s
driving on the center line at the point past the curve. The court noted as its reasoning, “I’ve
been going underneath that underpass for as long as I’ve been driving . . . . And there’s a
tendency to move to the left a little bit because it appears narrower.”

       Therefore, the trial court determined the following:

               I think we had an improper turn from . . . Church Street onto
       Washington; I think we had an improper turn from Washington to the right
       onto East Broadway; and then we had a clear crossing of the center line of at
       least a foot, perhaps as much as two feet. So, even if I discount the riding of
       the center line that I could not see real clearly going up the hill to the
       underpass, I think . . . if you look to the totality of the circumstances, by the
       time of the crossing of the center line in the curve, the officer had observed
       three different times when the Defendant/driver did not either make a proper
       turn and/or crossed the center line.

       Accordingly, the trial court determined that Officer Fuller had reasonable suspicion
to stop the Defendant’s vehicle and denied the Defendant’s motion to suppress.


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                                          Guilty Plea Hearing

       The Defendant subsequently entered a guilty plea to one count of DUI and one count
of violating the implied consent law. Pursuant to the Defendant’s plea agreement, the trial
court sentenced the Defendant to eleven months, twenty-nine days, to be suspended to
probation following service of forty-eight hours in confinement. In conjunction with his
guilty plea, the Defendant reserved the following certified question of law:

        Whether the officer’s conduct violated the Defendant’s rights under Article I,
        Section 7 or the Fourth Amendment when the officer through activating blue
        lights caused the Defendant to stop his moving vehicle and encounter the
        officer.

        The State recited the following factual basis for the plea:1

        [O]n April the 13th of 2009, Officer Kevin Fuller with the Maryville Police
        Department fell behind a silver Ford Taurus that was operating on the public
        roadways in Maryville City, Blount County, Tennessee, both on Washington
        Avenue and on East Broadway. While following this vehicle, Officer Fuller
        observed the vehicle either leave its lane of travel and cross the center line on
        multiple occasions. Based on this, Officer Fuller conducted a traffic stop on
        that motor vehicle.

                Upon stopping the motor vehicle, it was determined that the
        Defendant . . . had been operating that motor vehicle. And upon making
        contact with [the Defendant], Officer Fuller observed that he had bloodshot
        eyes, slurred speech, and a strong odor of alcohol coming from his person. A
        DUI investigation was conducted by Officer Fuller, in which the standardized
        field sobriety tests were conducted and questions were asked of the Defendant.
        Based on his performance on those field sobriety tests and admissions made
        by the Defendant as to drinking, Officer Fuller ultimately concluded that the
        Defendant . . . was operating a motor vehicle on those public roadways while
        under the influence of an intoxicant. . . .

        ....




        1
          The Defendant stipulated to the factual basis of the plea, except “he d[id] not agree that he crossed
the center line several times.”

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       [A]fter being placed under arrest for driving under the influence, Officer Fuller
       requested that Defendant submit to a blood alcohol test to determine the drug
       or alcohol content of his blood and Defendant refused to submit to that test, as
       to count two of the indictment.

The Defendant timely appealed. We now turn to the Defendant’s certified question,
challenging the legality of Officer Fuller’s stop of his vehicle.

                                           Analysis

                                     Standard of Review

        When conducting a review of the trial court’s determinations from a suppression
hearing, questions regarding the witnesses’ credibility, the weight and value of the proof, and
resolution of conflicts in the evidence are matters entrusted to the trial court as the trier of
fact. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, we will uphold the trial court’s
factual findings unless the preponderance of the evidence is otherwise. Id. However, where
the trial court has applied the law to the facts, we will conduct a de novo review. See State
v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Because the State is the prevailing party, it “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.”
Odom, 928 S.W.2d at 23.

       Certified Question: Whether the officer’s conduct violated the Defendant’s
       rights under Article I, Section 7 of the Fourth Amendment when the officer
         through activating blue lights caused the Defendant to stop his moving
                            vehicle and encounter the officer.

       Initially, we hold that this question was properly reserved and certified for our review.
See Tenn. R. Crim. P. 37(b)(2)(A); State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn.
1996).

       Our supreme court has recognized that, “[u]pon turning on the blue lights of a vehicle,
a police officer has clearly initiated a stop and has seized the subject of the stop within the
meaning of the Fourth Amendment.” State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).
However, a warrantless investigatory stop of a motor vehicle is lawful under the Fourth
Amendment “when the officer has a reasonable suspicion, supported by specific and
articulable facts, that a criminal offense has been or is about to be committed.” State v.
Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968);
Griffin v. State, 604 S.W.2d 40, 42 (Tenn. 1980)).


                                              -5-
        Our supreme court has defined “reasonable suspicion” as “a particularized and
objective basis for suspecting the subject of a stop of criminal activity.” State v. Davis, 354
S.W.3d 718, 727 (Tenn. 2011) (quoting State v. Day, 263 S.W.3d 891, 903 (Tenn. 2008)).
Furthermore, our supreme court has held that, “[i]n determining whether a police officer’s
reasonable suspicion is supported by specific and articulable facts, a court must consider the
totality of the circumstances,” including, among other things, “objective observations,
information obtained from other police officers or agencies, information obtained from
citizens, and the pattern of operation of certain offenders.” Watkins, 827 S.W.2d at 294. A
court also may consider “rational inferences and deductions that a trained police officer may
draw from the facts and circumstances known to him.” Id.

        The evidence does not preponderate against the findings of the trial court that Officer
Fuller stopped the Defendant’s vehicle based on reasonable suspicion of DUI. At the
suppression hearing, Officer Fuller testified that he first observed the Defendant’s vehicle
make a “too narrow” left turn which resulted in the Defendant’s vehicle’s driving into the
turning lane for oncoming traffic. The video submitted at the hearing shows the Defendant’s
vehicle’s left tires cross the double lines from that lane into the proper lane of travel. Officer
Fuller testified that the Defendant’s vehicle then made a “too wide” right turn, causing the
Defendant’s vehicle’s tires to cross over into the lane of oncoming travel. Although the
video does not clearly show this right turn, the trial court fully credited Officer Fuller’s
testimony. According to Officer Fuller, the Defendant’s vehicle’s tires then crossed the
center line and “straddled the center line throughout the curve” in the road. The video
submitted at the hearing supports Officer Fuller’s testimony in this regard.

        Accordingly, the proof presented of the Defendant’s vehicle’s right turn, left turn, and
the turn along the curve in the road supports the trial court’s determination that Officer Fuller
had reasonable suspicion to stop the Defendant for DUI. Therefore, the trial court properly
denied the Defendant’s motion to suppress. Consequently, we answer the Defendant’s
certified question in the negative. He is entitled to no relief.

                                          Conclusion

     For the foregoing reasons, we have answered the Defendant’s certified question in a
manner which entitles him to no relief. Accordingly, we affirm the Defendant’s convictions.


                                             _________________________________
                                             JEFFREY S. BIVINS, JUDGE




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