        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 July 19, 2016 Session

               STATE OF TENNESSEE v. LINDSEY A. OCHAB

                Appeal from the Circuit Court for Williamson County
                    No. I-CR068877      Joseph Woodruff, Judge


               No. M2015-02290-CCA-R3-CD – Filed October 26, 2016


In this appeal, the State challenges the ruling of the trial court granting the defendant‟s
motion to suppress evidence and dismiss the two-count indictment charging the
defendant with driving under the influence (“DUI”) and driving with a blood alcohol
content greater than .08 percent (“DUI per se”). Because the trial court failed to consider
the effect of a search warrant and because, at any rate, probable cause supported the
defendant‟s arrest, the trial court erred by granting the defendant‟s motion to suppress.
The judgment of the trial court is reversed, and the case is remanded to the trial court for
further proceedings consistent with this opinion.

    Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Tristan Poorman,
Assistant District Attorney General, for the appellant, State of Tennessee.

Roger Reid Street, Jr., and Elizabeth A. Russell, Franklin, Tennessee, for the appellee,
Lindsey A. Ochab.


                                        OPINION


               On March 14, 2014, Tennessee State Trooper Randy McDonald stopped the
defendant‟s car after he observed the defendant‟s vehicle cross the fog line, and, based
upon his observations of the defendant and her refusal to participate in field sobriety
tests, he placed the defendant under arrest for DUI. Trooper McDonald then obtained a
search warrant so that he could procure a sample of the defendant‟s blood for blood
alcohol testing.

               In June 2015, the Williamson County Grand Jury charged the defendant
with alternative counts of DUI and DUI per se. On August 24, 2015, the defendant
moved the trial court court to suppress her “unlawful arrest” and to “dismiss the
indictment which resulted from” the unlawful arrest. In her motion, the defendant argued
that Trooper McDonald lacked probable cause to arrest her. The motion did not include
challenges to the search warrant that precipitated the drawing of the defendant‟s blood or
to the results of subsequent blood alcohol testing. Indeed, the motion did not include a
challenge to any specific piece of evidence.

              At the October 30, 2015 hearing on the defendant‟s motion, Trooper
McDonald testified that at approximately 11:50 p.m. on March 14, 2014, he was traveling
north on Interstate 65 in Williamson County when he observed a vehicle “cross over the
fog line in the far right lane.” Trooper McDonald sped up to better observe the vehicle
and saw it “cross completely over the fog line again.” He then “fell in behind the vehicle
and it came over and touched the fog line at least 2 times.” At that point, Trooper
McDonald initiated a traffic stop.

               Trooper McDonald approached the vehicle on the driver‟s side, and the
defendant, who was driving the vehicle, rolled down the window. She indicated that the
male passenger was her fiancé. Trooper McDonald immediately smelled “an obvious
smell of [an] alcohol beverage coming from the vehicle.” He said that the defendant “had
bloodshot, watery eyes, slurred speech, and smelled of alcohol.” The defendant denied
having consumed alcohol. She gave Trooper McDonald her driver‟s license, but neither
she nor her fiancé could initially locate the vehicle registration documents. Trooper
McDonald ran the defendant‟s driver‟s license and then backed up his patrol car and shut
off the front blue lights in preparation for asking the defendant to perform field sobriety
tests. He explained that at that point he believed the defendant to be intoxicated and that
her fiancé was “extremely intoxicated.”

              When he approached the vehicle a second time, Trooper McDonald asked
the defendant to exit the vehicle so that he could speak with her further. He recalled that
when she stepped out of the vehicle, he again noticed the smell of an alcoholic beverage
coming from her person. He told the defendant that he could smell alcohol, and she again
denied that she had been drinking. She also denied having consumed any medication that
might have affected her ability to drive. Trooper McDonald asked the defendant if he
could check her eyes, and, although she initially “stood like she was going to let” him do
so, she then “decided that she wanted to decline” and “started talking about safety and
being on the side of the interstate.” He offered to transport her to a nearby location to
                                            -2-
perform the test and have the local police department sit with her vehicle and “keep an
eye on her intoxicated passenger,” who at that point had opened up the passenger‟s side
door and “was throwing up outside the car.” The defendant then flatly refused to perform
field sobriety tests in that or any other location. Trooper McDonald informed the
defendant that if she refused to perform the field sobriety tests, he would be unable to
“determine if she‟s okay to drive” and that he would have to arrest her for DUI.

              Trooper McDonald explained, “From my training, my experiences,
bloodshot, watery eyes, her behavior, the odor, you know, I felt like I had, you know, I
felt she was under the influence.” He noted that the defendant was “unsteady on her feet
. . . more heavy footed than . . . anything else.” He described “heavy footed” as “if
you‟re working out and you‟re doing squats and you done your last set of squats, when
you get done well you‟re not swaying, you‟re not falling, you‟re not staggering, but your
legs are weak and your feet are heavy footed.” He said that he had “run across that on the
road with impaired people.”

              Trooper McDonald said that he noticed the defendant‟s slurring her words
when she first spoke with him. That was when he initially observed that her eyes were
watery and appeared bloodshot. He said that he used his flashlight to see into the car but
did not shine the light into the defendant‟s eyes. He added that the interior light was on
in the car.

              The video recording from Trooper McDonald‟s cruiser camera was
exhibited to the hearing. The video establishes that just eight minutes elapsed from the
time Trooper McDonald first approached the defendant to the time that the defendant was
placed under arrest. During that time, the defendant can be observed walking only briefly
from her vehicle to Trooper McDonald‟s cruiser. Her gait appears to be normal during
that walk. As to the defendant‟s speech, background noise and sound quality make it
impossible to rule out or confirm a slight slur in the defendant‟s speech. She does
stammer on occasion and is less than articulate when speaking with Trooper McDonald.
Trooper McDonald tells the defendant that he can still smell the odor of alcohol coming
from her person even when she is outside of the vehicle. It is impossible to discern
whether the defendant‟s eyes are glassy or bloodshot, as described by the trooper.

             The affidavit of complaint contained within the application for a search
warrant, which appears in the technical record and which was referenced by the parties
and the trial court but which was not exhibited to the hearing, contains Trooper
McDonald‟s observations that the defendant smelled “moderate[ly]” of alcohol, that her
eyes were “[b]loodshot” and “[w]atery,” that her speech was “[s]lurred,” that her balance
was “[u]nsteady,” and that she was “[c]ombative” and “[i]nsulting” during their
interaction. Trooper McDonald indicated on the form document that the defendant
                                           -3-
refused both field sobriety tests and breath or blood alcohol testing. Based upon these
observations, the trooper asked that a warrant be granted to obtain a sample of the
defendant‟s blood for blood alcohol testing. A Williamson County Magistrate granted
the search warrant, and the defendant‟s blood was drawn at the Williamson Medical
Center at 1:52 a.m. The results of the blood alcohol test were not included in the record
on appeal.

              At the conclusion of the hearing, the trial court found that Trooper
McDonald had reasonable suspicion to stop the defendant‟s vehicle based upon his
observations of her driving. The trial court accredited some of Trooper McDonald‟s
testimony but found that parts of his testimony were contradicted by the video recording
of the stop. The court found that Trooper McDonald‟s testimony that he smelled a strong
odor of alcohol coming specifically from the defendant‟s person was contradicted by his
statement in the video recording that he only smelled “a little bit” of an odor when the
defendant stepped out of the vehicle, where it was likely that some of the odor was
coming from the defendant‟s “extremely intoxicated” fiancé. The court noted that
Trooper McDonald‟s testimony that he smelled a strong odor of an alcoholic beverage
coming from the defendant‟s person as she was seated in the back of the patrol car could
not be part of the probable cause calculus because the defendant had already been placed
under arrest at that point. Based upon its viewing of the video, the court concluded that
the defendant did not have slurred speech, did not have dexterity issues when providing
her license and registration to the trooper, and did not stumble or sway when getting out
of her vehicle to walk to the back of the trooper‟s vehicle. The court observed that the
defendant‟s demeanor was not belligerent and that her clothing was not soiled or
otherwise in disarray. The court concluded “that there is no probable cause to believe
that the defendant had committed the offense of DUI at the time she was placed under
arrest.” As a result, the court “suppress[ed] the arrest and any evidence that was prepared
subsequent to that unlawful arrest.” The court did not address the search warrant when
making its ruling.

             Following the trial court‟s ruling, the State announced that it could “not go
forward” based upon the court‟s ruling and asked the court to dismiss the indictment.

             The trial court later entered a written order suppressing “all the evidence
obtained pursuant to the unlawful arrest of” the defendant on grounds that “Trooper
McDonald did not have probable cause at the time he arrested” the defendant.

               In this appeal as of right by the State, the State contends that the trial court
erred by granting the defendant‟s motion to suppress, arguing that probable cause existed
to arrest the defendant. The defendant asserts that no appeal as of right lies for the State

                                              -4-
to challenge the ruling of the trial court and that, in the alternative, the trial court did not
err.

                                        I. Jurisdiction

               We consider first the defendant‟s claim that an appeal as of right does not
lie for the State in this case.

              Rule 3, relative to appeals as of right by the State, provides:

              In criminal actions an appeal as of right by the [S]tate lies
              only from an order or judgment entered by a trial court from
              which an appeal lies to the Supreme Court or Court of
              Criminal Appeals: (1) the substantive effect of which results
              in dismissing an indictment, information, or complaint; (2)
              setting aside a verdict of guilty and entering a judgment of
              acquittal; (3) arresting judgment; (4) granting or refusing to
              revoke probation; or (5) remanding a child to the juvenile
              court. The [S]tate may also appeal as of right from a final
              judgment in a habeas corpus, extradition, or post-conviction
              proceeding, from an order or judgment entered pursuant to
              Rule 36 or Rule 36.1, Tennessee Rules of Criminal
              Procedure, and from a final order on a request for expunction.

Tenn. R. App. P. 3(c). In State v. Meeks, our supreme court examined whether a trial
court‟s order suppressing evidence creates a situation where the “substantive effect” of
the order “results in dismissing an indictment, information, or complaint” pursuant to
Rule 3(c)(1) and concluded that it does not. State v. Meeks, 262 S.W.3d 710, 719-20
(Tenn. 2008). Instead, the high court held that “the entry of a final order dismissing the
indictment, information, or complaint is required for an appeal as of right under” Rule
3(c)(1). Id. at 720. The court specifically approved the procedure employed by the State
in Meeks:

              After the State decided against pursuing the interlocutory
              appeal from the November 9, 2005 suppression order, it
              requested the trial court to dismiss the indictments against
              Messrs. Meeks and Snyder, apparently because the District
              Attorney General had concluded that the suppression of the
              evidence found in Room 110 eliminated any reasonable
              probability of a successful prosecution. In its May 19, 2006
              order dismissing the indictments, the trial court specifically
                                              -5-
              found that “the suppression of the evidence . . . does present
              irreparable harm to the State‟s case in chief.” This order is a
              final order, and, by its own terms, it resulted from the entry of
              the November 9, 2005 suppression order. Accordingly,
              following the entry of that order, the State was entitled to an
              appeal as of right under [Rule] 3(c)(1).

Id. at 721.

               In the present case, the State employed essentially the same procedure as
that employed in Meeks. After the trial court entered its order “suppress[ing] the arrest
and any evidence that was prepared subsequent to that unlawful arrest,” the State
indicated that it could “not go forward” in light of the court‟s ruling and asked the trial
court to dismiss the indictment. After the trial court entered an order of dismissal, the
State then filed a timely notice of appeal as of right pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure. In consequence, the State is entitled to an appeal as of
right under Rule 3(c)(1).

                                      II. Irregularities

              Having confirmed our jurisdiction in this case, we pause at this point to
observe irregularities in this case.

               First, the motion filed by the defendant in the trial court was a motion to
dismiss more than a motion to suppress. The defendant moved the trial court to dismiss
the indictment merely because, she claimed, the arrest was unlawful. Dismissal of the
indictment, however, is not the proper remedy for an unlawful arrest. See State v. Baker,
966 S.W.2d 429, 432 (Tenn. Crim. App. 1997) (stating that “dismissal of the indictment
is not . . . the proper remedy for an allegedly unlawful arrest”); State v. Smith, 787
S.W.2d 34, 35 (Tenn. Crim. App. 1989) (“Generally, an illegal arrest does not invalidate
an indictment.”); Manier v. Henderson, 442 S.W.2d 281, 282 (Tenn. Crim. App. 1969)
(“The manner of arrest is immaterial to the validity of the indictment.”); Mullins v. State,
380 S.W.2d 201, 202 (Tenn. 1964) (“Numerous cases are in the books and otherwise
where defendants are prosecuted under indictments without being arrested prior to the
return of the indictments; defendants are indicted after being released at a preliminary
hearing; and in other cases defendants are prosecuted under indictments although the
initial arrest was invalid.” (emphasis added)). Instead, the appropriate remedy in the
criminal justice arena for an illegal arrest is suppression of any evidence obtained as a
direct or indirect result of the arrest. See Baker, 966 S.W.2d at 432 (“[T]he remedy for
an illegal arrest typically is not dismissal of the indictment but that evidence seized as the
result of an illegal arrest should be suppressed.”); Smith, 787 S.W.2d at 35 (“Evidence
                                             -6-
seized as a result of an illegal arrest is suppressed.”). When no evidence emanates from
an illegal arrest, the arrest is essentially inconsequential in the criminal justice arena.

               Second, after finding that Trooper McDonald lacked probable cause to
arrest the defendant, the trial court suppressed “the arrest.” The phrase “suppress the
arrest” is a syntactical anomaly, and we presume this to be a misstatement by the trial
court.1 See Nelson v. State, 470 S.W.2d 32, 33 (Tenn. Crim. App. 1971) (observing that
“the law is settled in this State that there is no constitutional immunity from an unlawful
arrest”); see also Manier, 442 S.W.2d at 282 (“There is no constitutional immunity from
an unlawful arrest.”). Moreover, no basis existed to suppress Trooper McDonald‟s
testimony regarding his observations of the defendant prior to the point of any
constitutional infraction. That is to say that Trooper McDonald could have testified in
any subsequent trial about the defendant‟s behavior prior to her arrest, even assuming that
the arrest was invalid.

              For our purposes, “suppress” means to exclude evidence.2 Ultimately, the
trial court suppressed “any evidence that was prepared subsequent to that unlawful
arrest.” Before making this ruling, however, the trial court failed to consider whether the
unlawful arrest actually tainted all the evidence prepared after the arrest. As indicated, in
this case, the defendant sought dismissal of the indictment and did not make a direct
challenge to any particular piece of evidence. One might assume that the defendant
wanted suppressed the results of blood alcohol testing that showed her blood alcohol
level to be above the legal limit; however, the defendant made no challenge to the search
warrant that was used to obtain the blood sample for blood alcohol testing.

             The failure to address the efficacy of the search warrant renders the
“suppression” ruling infirm because, when a claim has been made that evidence is “fruit”
of an unlawful arrest, the evidence may nevertheless be admissible if it fits within one of
several recognized exceptions to the exclusionary rule. See Utah v. Strieff, 136 S. Ct.
2056, 2061 (2016). The question to be answered is “„whether, granting establishment of

1
         After the hearing, the trial court entered an order suppressing “all the evidence obtained pursuant
to” the defendant‟s arrest, but we note that the defendant did not challenge the admission of the blood test
results.
2
         From the oral argument before this Court, we glean that the defendant sought dismissal of the
charges solely on the ground that the arrest was illegal. As such, the effort suggests an attempt to obtain a
summary judgment, a result that is generally prohibited in criminal law. See State v. Goodman, 90
S.W.3d 557, 561 (Tenn. 2002) (“Where the factual findings necessary to resolve the [pretrial] motion are
intertwined with the general issue, a ruling must be deferred until trial since, in criminal cases, there
simply is no pretrial procedure akin to summary judgment for adjudicating questions of fact involving the
general issue of guilt or innocence.”). The trial court did not “take the bait,” and although it “suppressed
the arrest,” it did not dismiss the case pursuant to the defendant’s motion. The dismissal came at the
behest of the State.
                                                    -7-
the primary illegality, the evidence to which instant objection is made has been come at
by exploitation of that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.‟” Brown v. Illinois, 422 U.S. 590, 598-99 (1975) (citation
omitted). By way of example, the Supreme Court explained,

             Three of these exceptions involve the causal relationship
             between the unconstitutional act and the discovery of
             evidence. First, the independent source doctrine allows trial
             courts to admit evidence obtained in an unlawful search if
             officers independently acquired it from a separate,
             independent source.         Second, the inevitable discovery
             doctrine allows for the admission of evidence that would have
             been discovered even without the unconstitutional source.
             Third, . . . is the attenuation doctrine: Evidence is admissible
             when the connection between unconstitutional police conduct
             and the evidence is remote or has been interrupted by some
             intervening circumstance, so that “the interest protected by
             the constitutional guarantee that has been violated would not
             be served by suppression of the evidence obtained.”

Strieff, 136 S. Ct. at 2061 (citations omitted). Both the independent source doctrine and
the attenuation doctrine could be implicated in this case because Trooper McDonald
obtained a search warrant for the defendant‟s blood for blood alcohol testing.

              “„In the classic independent source situation, information which is received
through an illegal source is considered to be cleanly obtained when it arrives through an
independent source.‟” Murray v. United States, 487 U.S. 533, 538-39 (1988) (quoting
United States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986)). In this case, based upon
Trooper McDonald‟s affidavit, the magistrate made a probable cause finding and issued
the search warrant, which, if valid, could have served to remove any taint associated with
the defendant‟s arrest. See United States v. Ponce, 947 F.2d 646, 651 (2d Cir. 1991)
(“[T]he intervening apparently illegal detention of defendants did not taint the subsequent
search because the police later obtained a valid search warrant.”). The presence of
information tainted by the allegedly illegal arrest in the trooper‟s affidavit would not
necessarily invalidate the warrant, so long as sufficient untainted information supported
the probable cause determination. See, e.g., United States v. Jenkins, 396 F.3d 751, 760
(6th Cir. 2005) (“In sum, authority from this and other circuits, as well as the principles
underlying the Murray rule, support an interpretation of the independent source rule that
incorporates consideration of the sufficiency of the untainted affidavit to see if probable
cause exists without the tainted information.”); United States v. Smith, 730 F.2d 1052,
1056 (6th Cir. 1984) (“[W]hen a search warrant is based partially on tainted evidence and
                                            -8-
partially on evidence arising from independent sources, „if the lawfully obtained
information amounts to probable cause and would have justified issuance of the warrant
apart from the tainted information, the evidence seized pursuant to the warrant is
admitted.‟” quoting United States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980)); see
also State v. Lemaricus Devall Davidson, No. E2013-00394-CCA-R3-DD, slip op. at 22
(Tenn. Crim. App., Knoxville, Mar. 10, 2015), app. pending (Tenn. argued Jan. 27,
2016).

            “The attenuation doctrine evaluates the causal link between the
government‟s unlawful act and the discovery of evidence.” Strieff, 136 S. Ct. at 2061
(2016). When making this evaluation, a reviewing court considers three factors:

              First, we look to the “temporal proximity” between the
              unconstitutional conduct and the discovery of evidence to
              determine how closely the discovery of evidence followed the
              unconstitutional search. Second, we consider “the presence
              of intervening circumstances.” Third, and “particularly”
              significant, we examine “the purpose and flagrancy of the
              official misconduct.”

Id. at 2061-62 (citations omitted). Importantly, a “valid search warrant” may be
sufficient to “purge the evidence of any „taint‟ arising from the” primary constitutional
violation. Segura v. United States, 468 U.S. 796, 814 (1984); see also Strieff, 136 S. Ct
at 2062 (“[T]he existence of a valid warrant favors finding that the connection between
unlawful conduct and the discovery of evidence is „sufficiently attenuated to dissipate the
taint.‟”).

               Given that the search warrant in this case might have purged any taint
associated with the defendant‟s arrest, even assuming that the arrest was made without
probable cause, the failure of the trial court to address the validity of the search warrant
and its impact on the admissibility of the blood alcohol test requires us to vacate the trial
court‟s order and to remand the case for further proceedings. Given that a remand is at
hand, we now consider the propriety of the trial court‟s finding of a lack of probable
cause, discerning that such further review will assist the trial court on remand and will
facilitate any further review of this appeal.

                        III. Reasonable Suspicion/Probable Cause

             Accordingly, we turn now to the State‟s claim that the trial court erred by
concluding that Trooper McDonald lacked probable cause to arrest the defendant and by
“suppress[ing] the arrest and any evidence that was prepared subsequent to that unlawful
                                             -9-
arrest.” The defendant contends that the trial court correctly suppressed the evidence and
dismissed the indictment, arguing that Trooper McDonald lacked probable cause to arrest
the defendant. The defendant also claims in her brief that Trooper McDonald lacked
reasonable suspicion to stop her vehicle in the first place.

              When reviewing a trial court‟s findings of fact and conclusions of law on a
motion to suppress evidence, we are guided by the standard of review set forth in State v.
Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court‟s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
at 23. When the trial court does not set forth its findings of fact upon the record of the
proceedings, however, the appellate court must decide where the preponderance of the
evidence lies. Fields v. State, 40 S.W.3d 450, 457 n.5 (Tenn. 2001). As in all cases on
appeal, “[t]he prevailing party in the trial court is afforded the „strongest legitimate view
of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.‟” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998)). We review the trial court‟s conclusions of law
under a de novo standard without according any presumption of correctness to those
conclusions. See, e.g., State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher,
989 S.W.2d 295, 299 (Tenn. 1999).

                                 A. Reasonable Suspicion

             We begin our analysis with the defendant‟s claim that Trooper McDonald
lacked reasonable suspicion to stop the defendant‟s vehicle.

             At the suppression hearing, Trooper McDonald testified that he first
observed the defendant‟s vehicle while he was driving northbound on Interstate 65 in
Williamson County. At that time, he saw her vehicle “cross over the fog line in the far
right lane.” After speeding up to better observe the vehicle, he saw the defendant‟s
vehicle “cross completely over the fog line again.” Trooper McDonald then “fell in
behind the vehicle and it came over and touched the fog line at least 2 times.”

              Police officers are constitutionally permitted to conduct a brief
investigatory stop supported by specific and articulable facts leading to reasonable
suspicion that a criminal offense has been or is about to be committed. Terry v. Ohio,
392 U.S. 1, 20-23 (1968); State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2002). Whether
reasonable suspicion existed in a particular case is a fact-intensive, but objective,
analysis. State v. Garcia, 123 S.W.3d 335, 344 (Tenn. 2003). The likelihood of criminal
activity that is required for reasonable suspicion is not as great as that required for
probable cause and is “considerably less” than would be needed to satisfy a
preponderance of the evidence standard. United States v. Sokolow, 490 U.S. 1, 7 (1989).
                                            -10-
A court must consider the totality of the circumstances in evaluating whether a police
officer‟s reasonable suspicion is supported by specific and articulable facts. State v.
Hord, 106 S.W.3d 68, 71 (Tenn. Crim. App. 2002). The totality of the circumstances
embraces considerations of the public interest served by the seizure, the nature and scope
of the intrusion, and the objective facts on which the law enforcement officer relied in
light of his experience. See State v. Pulley, 863 S.W.2d 29, 34 (Tenn. 1993). The
objective facts on which an officer relies may include his or her own observations,
information obtained from other officers or agencies, offenders‟ patterns of operation,
and information from informants. State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

              Recently, our supreme court concluded “that crossing over a fog line with
two of a car‟s four wheels is an instance of leaving one‟s lane of travel” as prohibited by
Code section 55-8-123, State v. Smith, 484 S.W.3d 393, 404 (Tenn. 2016), and held that
“when an officer observes a motorist crossing a clearly marked fog line, the totality of the
circumstances may provide a reasonable suspicion sufficient to initiate a traffic stop to
investigate the possible violation of Section 123(1),” see id. at 410-11. The court
observed,

              If the officer observes circumstances rendering it practicable
              for the motorist to remain in her lane of travel, that
              observation will weigh in favor of reasonable suspicion.
              Similarly, if the officer observes that the motorist‟s crossing
              of the fog line in some specific regard was unsafe, indicating
              that the driver failed to first ascertain the safety of the lane
              excursion, that observation will weigh in favor of reasonable
              suspicion.

Id. at 411. The court stated that to determine whether crossing the fog line provided
reasonable suspicion for a traffic stop, a reviewing court must “consider, from the
position of a reasonable officer, the circumstances indicative of whether the driving
conditions facing the [d]efendant allowed her to remain entirely in her lane „as nearly as
practicable.‟” Id. at 413.

              In this case, Trooper McDonald testified that he observed the defendant‟s
vehicle cross the fog line a total of four times. The video recording confirms that the
defendant‟s vehicle crossed the fog line on more than one occasion. No evidence
suggested that it was impracticable for the defendant to maintain her lane. No
obstruction appears in the roadway that would have required the defendant to cross the
fog line. The weather conditions were clear and dry. Based upon this evidence, we
easily conclude that the evidence established that the defendant “left her lane of travel
when it was practicable to remain there and/or left her lane of travel without first
                                            -11-
ascertaining that it was safe to do so.” See Smith, 484 S.W.3d at 412. Consequently, we
affirm the trial court‟s ruling that Trooper McDonald had reasonable suspicion to stop the
defendant‟s vehicle.

                                   B. Probable Cause

             We next consider the State‟s claim that the trial court erred by concluding
that Trooper McDonald lacked probable cause to arrest the defendant for DUI.


              As our supreme court recently reiterated,

              “Probable cause exists when „at the time of the arrest, the
              facts and circumstances within the knowledge of the officers,
              and of which they had reasonably trustworthy information,
              are sufficient to warrant a prudent person in believing that the
              defendant had committed or was committing an offense.‟ It
              requires „more than a mere suspicion.‟ Instead, a probable
              cause inquiry focuses on probabilities rather than
              technicalities and is grounded in the factual and practical
              considerations of everyday life on which reasonable and
              prudent people, not legal technicians, act.”

State v. Davis, 484 S.W.3d 138, 143 (Tenn. 2016) (citations omitted). “To determine
whether an officer had probable cause to arrest an individual, we examine the events
leading up to the arrest, and then decide „whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to‟ probable cause.”
Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v. United States, 517
U.S. 690, 696 (1996)). Our supreme court has “emphasize[d] that „the strength of the
evidence necessary to establish probable cause . . . is significantly less than the strength
of evidence necessary to find a defendant guilty beyond a reasonable doubt.‟” Davis, 484
S.W.3d at 143-44 (quoting State v. Bishop, 431 S.W.3d 22, 41 (Tenn. 2014)).

              In this case, “[t]he question of whether the arrest was supported by
probable cause depends upon whether at the time the arrest was made there were facts
and circumstances within the officer‟s knowledge which would warrant a man of
prudence and caution in believing that the defendant had committed” DUI. State v.
Evetts, 670 S.W.2d 640, 642 (Tenn. Crim. App. 1984). To this end, “[a]ll information in
the officer‟s possession, fair inferences therefrom, and observations, including past
experiences, are generally pertinent.” Id.

                                            -12-
              Although it is generally true that “[q]uestions 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,” see Odom, 928
S.W.2d at 23, “when a court‟s findings of fact at a suppression hearing are based solely
on evidence that does not involve issues of credibility, such as . . . videotape evidence . . .
the rationale underlying a more deferential standard of review is not implicated,” see
Binette, 33 S.W.3d at 217. “„In such circumstances, a trial court‟s findings of fact are
subject to de novo appellate review.‟” State v. Turner, 305 S.W.3d 508, 514 (Tenn.
2010) (quoting State v. Payne, 149 S.W.3d 20, 25 (Tenn. 2004)). Because the trial court
based its conclusion that Trooper McDonald lacked probable cause to arrest the
defendant on its own viewing of the video recording of the traffic stop, which is included
in the record on appeal, our review is de novo. See Turner, 305 S.W.3d at 514.

              Here, Trooper McDonald testified that he observed the defendant‟s vehicle
weaving on Interstate 65, four times touching or crossing the fog line. When he
approached the defendant‟s vehicle after effectuating a traffic stop, he was immediately
struck by a strong odor of alcohol. Admittedly, the defendant‟s fiancé, who was in the
passenger‟s seat, was “extremely intoxicated.” Trooper McDonald said that even after
the defendant exited the vehicle, he could still smell an odor of alcohol emanating from
her person. Trooper McDonald testified that the defendant‟s eyes were glassy and
bloodshot, that her speech was slurred, and that she walked with a “heavy footed” gait.

                The trial court concluded that the video recording belied the officer‟s
testimony regarding the defendant‟s odor of alcohol, her speech, and her gait. Upon our
de novo review of the video recording, we disagree. The recording is short, totaling
approximately eight minutes. The recording confirms that Trooper McDonald told the
defendant that he could still smell an odor of alcohol coming from her even after she got
out of the car and stood on the side of the interstate. The quality of the video recording is
insufficient, in our view, to determine whether the defendant‟s eyes appear glassy or
bloodshot, as claimed by Trooper McDonald. With regard to the defendant‟s gait, she is
seen walking on the video only a short distance from her vehicle to Trooper McDonald‟s
cruiser. She does not appear to be unsteady on her feet, and she certainly did not stagger.
We cannot say that she did not walk with a “heavy footed” gait, as described by the
trooper. With regard to the defendant‟s speech, again our review is somewhat hampered
by the sound quality in the video. A great deal of road noise is audible. The defendant‟s
speech is certainly not overly slurred, but she does stammer on several occasions and is
less than articulate as she speaks with Trooper McDonald. We agree with the trial court
that the defendant did not appear disheveled and did not struggle with dexterity when
retrieving her driver‟s license, but we note that Trooper McDonald never made any
claims with regard to the defendant‟s appearance or her manual dexterity. Based upon
the totality of the circumstances, we conclude that Trooper McDonald had probable cause
                                             -13-
to arrest the defendant. In consequence, we reverse the ruling of the trial court granting
the defendant‟s motion to suppress.3

                                                Conclusion

                The trial court erred by suppressing all evidence emanating from the arrest
without considering the effect of the post-arrest search warrant, and furthermore, under
the totality of the circumstances, probable cause existed for the defendant‟s arrest.
Accordingly, the judgment of the trial court is reversed, and the case is remanded to the
trial court for further proceedings consistent with this opinion.

                                                           _________________________________
                                                           JAMES CURWOOD WITT, JR. JUDGE




3
         Because we have determined that the evidence otherwise establishes that Trooper McDonald had
probable cause to arrest the defendant, we do not consider the State‟s claim that the defendant‟s refusal to
perform field sobriety tests can be part of the probable cause calculus as it is in other states. See State v.
Babbitt, 525 N.W.2d 102, 105 (Wis. Ct. App. 1994) (“Thus, because the defendant‟s refusal to submit to
a field sobriety test is some evidence of consciousness of guilt, this evidence should be admissible for the
purpose of establishing probable cause to arrest.”); Jones v. Com., 688 S.E.2d 269, 272-73 (Va. 2010)
(“Accordingly, we hold that in determining whether a police officer had probable cause to arrest a
defendant for driving under the influence of alcohol, a court may consider the driver‟s refusal to perform
field sobriety tests when such refusal is accompanied by evidence of the driver‟s alcohol consumption and
its discernable effect on the driver‟s mental or physical state.”).
                                                    -14-
