        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 19, 2013 Session

                    STATE OF TENNESSEE v. KURT GADKE

                 Appeal from the Circuit Court for Williamson County
                   No. II-CR126080     James G. Martin, III, Judge


                No. M2012-01519-CCA-R3-CD - Filed August 26, 2013




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

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., and J EFFREY S. B IVINS, JJ., joined.

Charles D. Buckholts, Nashville, Tennessee for the Defendant-Appellant, Kurt Gadke.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Jessica Borne, Assistant District
Attorney General, for the Appellee, State of Tennessee.


                                          OPINION

       On August 20, 2011, Gadke was stopped by Deputy Raechel Haber of the Williamson
County Sheriff’s Office while driving in Williamson County, Tennessee. After failing to
perform several field sobriety tasks, Deputy Haber arrested Gadke for driving under the
influence of an intoxicant. Gadke later filed a motion to suppress arguing that Deputy Haber
lacked reasonable suspicion to support the stop and arrest. The trial court denied the motion,
and Gadke subsequently entered a negotiated guilty plea. Pursuant to Tennessee Rule of
Criminal Procedure 37(b)(2), Gadke properly reserved the following certified question of law
for our review:

        [W]hether from the totality of the circumstances, [the arresting deputy] had
       either probable cause or reasonable suspicion that Kurt Gadke’s vehicle and
       Kurt Gadke were subject to seizure for violation of the law based upon [the
       deputy’s] observation and the police car videotape of Mr. Gadke driving on
       Moore’s Lane and Franklin Road on or about [the offense date].

        At the November 16, 2011 preliminary hearing, Deputy Haber testified that she was
on duty at approximately 1:45 a.m. on August 20, 2011. A white Cadillac “caught her
attention” because it was following “very closely” behind a charcoal Honda Accord, later
determined to be driven by Gadke. She began following both cars on Moore’s Lane until
they turned onto Franklin Road. During this time, she observed the Accord have difficulty
maintaining its lane of travel. She testified that the Accord was “swerving within its lane,
as well as going over the fog line and the center double yellow line.” Deputy Haber said that
the Accord crossed the center line or fog line at least three times. She activated her blue
lights and initiated a stop of the Accord when it turned onto Allendale Drive.

       When she approached the Accord, Deputy Haber observed a strong odor of alcohol
and noticed that Gadke had bloodshot, watery eyes. She said that Gadke told her the Cadillac
had been following him because, “I had gotten behind them.” The driver of the Cadillac had
called Gadke and said, “‘I’m going to stay behind you on your way home because there’s a
police officer behind you.’” Gadke failed to perform several field sobriety tests and admitted
that he had consumed two beers. Pursuant to the implied consent law, Gadke submitted to
a blood test which resulted in a blood alcohol content of .14 percent.

       On cross-examination, Deputy Haber said that the Cadillac appeared to “cover” for
the Accord, “following him very closely and following his traffic patterns as well.” She
conceded that she could not recall whether the Accord crossed the center line or the fog line,
but insisted that the vehicle crossed one of those lines at least three times. The incident was
recorded by Deputy Haber’s in-car camera, which was attached to the passenger side of her
car. Although the recording shows that the Cadillac obstructed the view of the Accord at
times, Deputy Haber testified that she maintained a visual of the Accord despite the efforts
of the Cadillac.

         At the April 17, 2012 suppression hearing, Deputy Haber provided substantially the
same testimony. She testified that she was certain the Accord crossed the center line or fog
line at least three times. She stated, “Based on my training and experience, I’ve always been
taught that the standard is three times. Often times I’ll get a lot more than three, but I always

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make sure to stop – or observe the vehicle crossing the line three times.” In addition, she
testified that she initiated the stop after she observed the Accord make a wide right turn onto
Allendale Drive and begin to drive down the center of the road.

       On cross-examination, Deputy Haber was unable to recall the exact number of times
the Accord crossed the line, but restated that it was more than three times. Initially, Deputy
Haber asserted that the in-car camera captured all of the illegalities that she observed.
However, she later testified that the in-car camera view was obstructed by the Cadillac at
certain points during the recording. She also stated that she did not activate the camera until
she had followed the vehicles onto Franklin Road, and as a result, some traffic violations that
occurred on Moore’s Lane were not captured by the videotape.

       In denying Gadke’s motion to suppress, the trial court determined that Deputy Haber
had reasonable suspicion to conduct an investigatory stop of Gadke’s car because it had
crossed the center and fog lines three times, another car was following Gadke’s car at an
unsafe distance, and Gadke made a wide right turn while turning onto Allendale Drive.
Finally, the trial court concluded that Deputy Haber’s testimony was credible.

                                        ANALYSIS

        In this appeal, Gadke contends that Deputy Haber lacked reasonable suspicion to
initiate a stop of his car. He argues that the testimony of Deputy Haber was inconsistent and
non-specific because she was unable to recall whether Gadke crossed the center line or fog
line or the exact number of times that either line was crossed. Gadke further asserts that the
testimony of Deputy Haber is contradicted by the videotape captured by her in-car camera,
which he maintains does not show his vehicle crossing either line or committing any other
traffic violation that would provide reasonable suspicion to initiate the stop.

       In response, the State contends that Deputy Haber observed Gadke swerve within his
own lane as well as cross either the center line or fog line, in violation of Tenn. Code Ann.
Section 55-8-123(1), which provided Deputy Haber with reasonable suspicion to initiate a
stop of his vehicle. The State argues that the trial court credited Deputy Haber’s testimony
regarding her observations, and the evidence does not preponderate against this finding.
Upon review, we agree with the State.

        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). It is well-established that
“a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The Tennessee
Supreme Court explained this standard in Odom:

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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.

Id. 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); State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997)). The defendant bears the burden of showing that the evidence
preponderates against the trial court’s findings. Odom, 928 S.W.2d at 23; Yeargan, 958
S.W.2d at 629.

       Contrary to Gadke’s argument, State v. Binette, 33 S.W.3d 215 (Tenn.2000) does not
provide the proper standard of review. Significantly, 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. at 217 (emphasis added). In Binette, the State
presented only the videotape evidence, and did not present any live witnesses during the
hearing; therefore, the more deferential, preponderance standard, was not appropriate
because the trial court based its decision “solely on evidence that [did] not involve issues of
credibility.” Id. The Tennessee Supreme Court held that in such cases, a trial court’s
findings of fact are subject to de novo review. Id. Unlike Binnette, the present case
involves both videotape evidence and live testimony from the arresting officer, which created
issues of credibility for the trial court. The trial court specifically made a finding of fact
regarding the credibility of the testifying officer, which will be upheld “unless the evidence
preponderates otherwise.” Odom, 928 S.W.2d at 23; see also State v. Garcia, 123 S.W.3d
335, 343 (2003) (applying the Odom standard where the evidence presented included both
videotape evidence as well as live testimony).

       The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect individuals 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,

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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
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, 392 U.S. at 21.
Probable cause is not required for an investigatory stop. State v. Coleman, 791 S.W.2d 504,
505 (Tenn. Crim. App. 1989) (citing Terry, 391 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)). Although
reasonable suspicion is a less demanding standard than probable cause, see State v. Day, 263
S.W.3d 891, 902 (citing Alabama v. White, 496 U.S. at 330), it requires more than an
“inchoate and unparticularized suspicion or ‘hunch.’” Day, 263 S.W.3d at 902 (citing Terry,
392 U.S. at 27). The officer’s reasonable suspicion 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 (citing Terry, 392 U.S. at 27). In
determining whether reasonable suspicion exists, the court must consider the totality of the
circumstances, including, but not limited to, personal observations and “rational inferences
and deductions that a trained officer may draw from the facts and circumstances known to
him.” Yeargan, 958 S.W.2d at 632 (citing United States v. Cortez, 449 U.S. 411, 418 (1981);
Terry, 392 U.S. at 21; State v. Watkins, 827 S.W.2d 293, 294(1992)). For an investigatory
stop, 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.” State v. Levitt, 73 S.W.3d 159, 172
(Tenn. Crim. App. 2001) (citing Ornelas, 517 U.S. at 695) (internal quotations removed).

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

              The Court finds that on August 12 [sic], 2011, at 1:45 in the morning,
       [Deputy] Raechel Haber, with the Williamson County Sheriff’s Department,
       was on duty, she was on Moore’s Lane at a gas station when she observed a
       Honda Accord and a white Cadillac on Moore’s Lane travelling [sic] towards
       Franklin Road.

              She then followed the two vehicles for a period until they got to the
       intersection of Moore’s Lane and Franklin Road. And during the course of the
       time she followed the two vehicles north on Franklin Road, she observed the



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       Honda Accord swerve and cross or touch the center yellow line or white fog
       line on the right on three different occasions.

              Prior to that, though, she had observed the Cadillac following very
       closely to the Honda Accord, which caused her concern for two reasons. It’s
       been her experience that on occasion when a driver may have some difficulty
       operating a vehicle, another driver will assist by following. It is also of
       concern that if there’s an accident, then both vehicles are going to be
       implicated; so that caused concern for [Deputy] Haber when she observed the
       conduct in question, in addition to observing the Honda Accord touch or cross
       the center line or fog line on three different occasions.

              It has now been quite some time since the incident, [Deputy] Haber’s
       recollection is very clear that based on her custom and practice, she won’t
       make a stop unless she observes at least three occasions when a vehicle
       swerves in their lane and touches or crosses either a center line or fog line.

              The video in this case was taken from quite some distance. It did not
       start until [Deputy] Haber made the right turn on Franklin Road, so the
       behavior of the two vehicles prior to the time the vehicles turned onto Franklin
       Road off of Moore’s Lane is not captured within the video itself.

              [Deputy] Haber then testified that as she observed the Honda Accord
       make the right turn onto Allendale, it turned wide to the right, and then,
       essentially, occupied the center of Allendale prior to the time that she made the
       stop.

               While the Court concedes that these facts, in some measure, are not
       evident in from the video, the Court does find [Deputy] Haber to be credible.
       The Court credits her testimony, and concludes that she did have a reasonable
       basis, supported by specific and articulable facts, to make the stop, and for that
       reason the Court denies the Motion to Suppress.

        Upon our review of the record, we conclude that the evidence does not preponderate
against the trial court’s denial of Gadke’s motion to suppress. While Deputy Haber’s
testimony is not without inconsistencies, she testified that she initiated the stop of Gadke
because she had “observed the vehicle failing to maintain its lane of travel at least three
times.” We further acknowledge that Deputy Haber was unable to articulate the exact
number of times the Accord crossed the center line or fog line; however, as noted by the trial
court, she testified that her standard practice was to “observe the vehicle cross the line three

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times” before initiating a stop. She also said that based on her training, she believed that the
white Cadillac was following Gadke’s car in an attempt to cover up Gadke’s poor driving
and possible impairment. Here, the trial court specifically found the testimony of Deputy
Haber to be credible. Accordingly, any inconsistencies in Deputy Haber’s testimony were
resolved by the trial judge as trier of fact. Odom, 928 S.W.2d at 23.

       We have also reviewed the videotape, and conclude that it neither confirms nor refutes
Deputy Haber’s testimony. Although the videotape does not show three, easily recognizable
instances of traffic violations, Deputy Haber testified that she had a different view than the
videotape and was able to observe more violations. Significantly, as noted by the trial court,
Deputy Haber did not activate the videotape until turning onto Franklin Road, after observing
several instances of traffic violations. The trial court found Officer Haber’s testimony to be
credible, and we do not conclude that the videotape contradicts this testimony or
demonstrates that the record preponderates against the trial court’s determination. Odom,
928 S.W.2d at 23. The record supports the trial court’s determination that Officer Haber had
reasonable suspicion to stop Gadke, and thus, there is no basis upon which to reverse the trial
court’s denial of Gadke’s motion to suppress. Accordingly, Gadke 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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