        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 16, 2014 Session

         STATE OF TENNESSEE v. LINZEY DANIELLE SMITH
                 Appeal from the Circuit Court for Williamson County
                   No. IICR077410 James G. Martin, III, Judge




                No. M2013-02818-CCA-R3-CD - Filed February 2, 2015


N ORMA M CG EE O GLE, J., dissenting.

      I respectfully disagree in the reasoning and result reached in the majority opinion.
The majority opinion concludes that our supreme court’s holding in Brotherton is dispositive
and requires that this court affirm the defendant’s conviction. However, in my view,
Brotherton is clearly distinguishable from the instant case.

        In State v. Brotherton, the officer stopped the defendant to investigate the defendant’s
broken taillight. 323 S.W.3d 866, 868 (Tenn. 2010). As noted by the majority, a brief
investigatory detention for further investigation must be supported by reasonable suspicion.
State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009). Our supreme court concluded that
Brotherton’s shoddy repair of the light with red taillight tape, along with “[t]he bright white
light shining from the hole in the tape on Mr. Brotherton’s taillight,” provided the officer
with reasonable suspicion that the defendant was in violation of Tennessee Code Annotated
section 55-9-402(b). Brotherton, 323 S.W.3d at 871-72.

        In the instant case, the officer testified that he stopped the defendant because she
failed to maintain her lane of travel in violation of Tennessee Code Annotated section 55-8-
123(1). In other words, he stopped her for the actual commission of a traffic offense, not to
investigate further. Therefore, the question was whether the defendant’s driving provided
the officer with the higher standard of probable cause to make the stop and issue a citation.
See id. at 870.

       Trooper Achinger stated that as the defendant was entering “a big swooping curve,”
her vehicle drifted to the right toward the shoulder of the road and crossed the fog line by less
than six inches. As the defendant exited the curve, she corrected the vehicle back into its
lane. She then “drifted” to the right two additional times. However, she did not cross the fog
line either time, and she “drove fine” for more than two miles. Trooper Achinger said that
the defendant never weaved within her lane, that her car’s tires never crossed the dotted
white line to the left, that she never changed lanes, and that he would not describe her driving
as erratic before he stopped her. In my view, the facts of this case did not provide the officer
with probable cause to stop and issue the traffic citation, particularly when the statute at issue
provides that a vehicle shall be driven “as nearly as practicable” within a single lane.

        Furthermore, I believe my conclusion comports with this court’s holdings in State v.
Ann Elizabeth Martin and State v. Watson. In Ann Elizabeth Martin, this court concluded
that the defendant’s briefly crossing the fog line one time on a four-lane highway did not
result in reasonable suspicion or a traffic violation. No. E1999-01361-CCA-R3-CD, 2000
Tenn. Crim. App. LEXIS 693, at *18-19 (Knoxville, Sept. 8, 2000). As noted by the
majority, the facts in Ann Elizabeth Martin are “remarkably similar” to the facts in the instant
case. In Watson, this court concluded that the officer had reasonable suspicion to stop the
defendant for DUI. However, the facts in Watson are quite different from the facts in Ann
Elizabeth Martin and the facts here in that the officer saw the defendant pull onto a two-lane
highway from a bar, cross the fog line twice, and cross the double yellow lines once.
Watson, 354 S.W.3d at 331. As this court noted, the defendant was “certainly more than
weaving within his own lane of traffic,” and his crossing the double yellow lines alone would
have established probable cause for the stop. Id.

      In sum, I think the trial court should have granted the defendant’s motion to suppress.
Therefore, I would reverse the judgment of the trial court.




                                                     ____________________________________
                                                     NORMA MCGEE OGLE, JUDGE




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