        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               December 11, 2012 Session

              STATE OF TENNESSEE v. WADE ALLEN WILLIS

               Direct Appeal from the Circuit Court for Maury County
                        No. 21084     Jim T. Hamilton, Judge




                 No. M2012-01577-CCA-R3-CD - Filed April 17, 2013


Defendant, Wade Allen Willis, was indicted by the Maury County Grand Jury for the
offenses of driving under the influence of intoxicants per se (DUI), violation of the
registration law, violation of the financial responsibility law, and for failure to maintain
control of his vehicle. The charges were the result of a traffic stop of Defendant by a state
trooper of the Tennessee Highway Patrol. Defendant filed a motion to suppress evidence
obtained as a result of his arrest, solely on the basis that his arrest “was without a warrant
and without probable cause.” Defendant did not assert that the officer lacked reasonable
suspicion to initiate a stop of Defendant. Following a hearing on the motion to suppress, the
trial court took the matter under advisement. The trial court subsequently entered a written
order granting Defendant’s motion to suppress all evidence obtained “following the initial
detention and subsequent arrest.” The State has appealed, following a nolle prosequi of the
indictment. Following a thorough review we reverse the judgment of the trial court, reinstate
the charges, and remand for further proceedings.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and R OGER A. P AGE, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Mike Bottoms, District Attorney General; and Caleb Bayless, Assistant
District Attorney General, for the appellant, State of Tennessee.

Gary Howell, Mt. Pleasant, Tennessee, (on appeal); and William C. Barnes, Columbia,
Tennessee, (at trial), for the appellee, Wade Allen Willis.
                                          OPINION

       Defendant’s entire motion to suppress evidence states the following:

                Comes the Defendant, through counsel, and would move the Court
        for an Order suppressing from the trial of this cause any evidence obtained
        as the result of the arrest of the Defendant on February 19, 2011, including
        but not limited to the results of any test performed on Defendant’s blood,
        and for grounds therefor would show that the arrest of the Defendant was
        without a warrant and without probable cause.

               WHEREFORE, Defendant prays that all evidence resulting from
        said arrest be excluded from the trial of this cause.

        At the beginning of the suppression hearing Defendant’s counsel reiterated that “our
basic motion is that there was a lack of probable cause for the arrest.” In Defendant’s brief
on appeal, it is abundantly clear that Defendant does not rely upon the ground that the officer
lacked reasonable suspicion of criminal activity to justify the initial stop. The brief states in
part, “[i]t is true that the [trial] Court also opines in its Order that the Trooper did not have
reasonable grounds to even stop the [Defendant]. However, this was not the basis of
[Defendant’s] [m]otion [and] it was not argued by [Defendant]. . . ”

        Tennessee Highway Patrol Trooper Brandon McCauley, called by the State, was the
only witness who testified at the suppression hearing. Defendant’s counsel did not cross-
examine Trooper McCauley. The officer identified a video played during the hearing as an
accurate description of “what happened on the night in question.” Trooper McCauley
testified that he observed Defendant driving his vehicle in the left lane on the southbound
side of Highway 43 South. Defendant’s vehicle weaved in its lane and “also crossed the fog
lines [sic] several times.” The officer clarified that the line crossed was the yellow line on
the left side of the road. This was on a divided highway, and Defendant pulled over to the
left into the median dividing the southbound from the northbound lanes. Trooper McCauley
testified that Defendant admitted he had drank one beer. At Trooper McCauley’s request
Defendant got out of his vehicle to perform field sobriety tests. Trooper McCauley testified
that on the “9-step walk and turn” test, Defendant started too soon (before being instructed
to do so), he made an improper turn, and he “stepped off the line.” The officer testified that
two or more “clues,” implicitly such as these named observations, indicated a blood alcohol
content of 0.08 or more. While performing the “one-leg stand” test, Defendant was swaying
back and forth, and also put his foot down while it was supposed to be raised. On the
“finger-to-nose” test, Defendant “completely missed his nose a couple of times, and was kind
of slow the other time but did hit it.” Trooper McCauley then placed Defendant under arrest

                                               -2-
for DUI. At this point in Trooper McCauley’s testimony, the prosecutor asked the officer if
the blood alcohol test results had been determined. Defendant’s counsel objected on the
basis that information was not relevant because “[w]e’re here talking about probable cause
for the arrest.”

       We have reviewed the videotape which was made an exhibit at the suppression
hearing. It shows the following. The public highway being driven upon by Defendant is a
divided highway with two driving lanes and one left turn lane in the southbound side in
which Defendant was driving when stopped. The audio-visual recording begins while
Defendant is being pulled over and as he turns in to stop his vehicle in the median of the
highway, just to the left of the left turn lane. Upon initial questioning by Trooper McCauley,
Defendant stated he had drank two beers, with the second one finished approximately two
hours prior to being pulled over. Defendant said he had been to a friend’s house, but he did
not know where the house was located. He later stated his friend lived in Santa Fe, a
community in Maury County. Defendant stated that he had no medical problems and had not
been taking any prescribed medications.

        At the Trooper’s suggestion, Defendant removed his cowboy boots prior to the
sobriety tests. The first test administered was the 9-step heel-to-toe test. In the initial stage
of instructions for the heel-to-toe test, Trooper McCauley stated, “I want you to put your right
foot in front of your left foot.” Defendant was standing on the fog line of the highway and
immediately placed his right foot in front of his left foot. Trooper McCauley, at that point,
told Defendant to not start the test until he (Defendant) was instructed to do so by Trooper
McCauley. The trooper finished the instructions, and Defendant began the test. Defendant
counted nine steps but actually took an extra tenth step. His pivot to turn around was
awkward; Defendant placed his right foot out further than was instructed by Trooper
McCauley, and Defendant also left the fog line and staggered while he was turning around.

       On the one-leg stand, Defendant raised his right leg approximately six inches above
the ground with his toes pointed out and down. Defendant’s left foot raised up, causing
Defendant to wobble at Defendant’s count of “one thousand four” and at “one thousand
twelve” Defendant dropped his right foot to the ground. He raised it back up and continued
counting until “one thousand twenty-two” when the trooper told Defendant to stop. The tape
of the finger to nose test was blurry at Defendant’s face, but what can be observed is
consistent with Trooper McCauley’s testimony.

        Defendant’s speech did not seem to be slurred. He was not belligerent or obnoxious.
When questioned, he correctly answered the time of night, the date, and his location. He
stated that he was not a frequent drinker and only consumed alcoholic beverages about once
each four months. At times during the process when Trooper McCauley asked Defendant

                                               -3-
to stand still while the trooper attended to matters at his patrol car, Defendant stood erect
without leaning against anything, did not sway, and stayed in his location without moving.

      Approximately three months after the hearing, the trial court entered its order granting
Defendant’s motion to suppress. The findings of fact made by the trial court are:

               Trooper Brandon McCauley observed the defendant’s car as the
        defendant weaved over into his lane crossing over and touching the yellow
        line briefly as the defendant traveled southbound on Highway 43/412
        Bypass . . . at 1:37 a.m. The defendant told the trooper he had been visiting
        a friend in the Santa Fe area and had consumed two beers, the last beer
        being consumed some two hours before the stop.

                The trooper stopped the defendant and conducted three sobriety tasks
        [sic] 9-step-toe-to-toe, which after allowing the defendant to remove his
        cowboy boots, the defendant did well; one leg stand, officer reported the
        defendant did well only touching the ground one time while counting to
        twenty; finger-to-nose task [sic], the officer reporting that the Defendant
        missed his nose twice and was “kind of slow.”

               The video camera was working properly at the time of the stop and
        did not show any particularly damaging evidence that the Defendant was
        impaired given the time of the stop which was in the early hours of the day.

      The trial court made the following conclusions of law in making its determination that
the motion to suppress should be granted:

               The driving behavior of the defendant in the case at bar, does not
        establish reasonable suspicion or probable cause that the defendant was
        committing an offense.

        ...

              There are several [appellate court] decision[s] which demonstrate the
        standard for an officer to follow when observing a vehicle while
        contemplating a warrantless stop.

              None of these decisions require the vehicle to follow a perfect vector
        down the highway or whether there is a technical driving imperfection [sic].



                                             -4-
                The standard is whether under the totality of the circumstances the
        acts of the defendant develop into specific and articulable circumstances to
        justify seizing him.

               The traffic stop of the vehicle in question was premature, and his
        driving behavior standing alone, did not give Trooper McCauley the
        requisite reasonable suspicion or probable cause to stop the defendant’s
        vehicle.

        Defendant has acknowledged from the outset that there was not a constitutional
violation when Trooper McCauley initiated the stop. However, Defendant concedes in his
brief that Trooper McCauley’s observations of Defendant’s driving prior to the stop are
relevant to a determination of probable cause for arrest. In spite of his concession, Defendant
asserts that the trial court’s findings of fact regarding the impropriety of the initial stop are
merely dictum. Defendant argues the trial court granted the motion to suppress based upon
a lack of evidence to establish probable cause for the arrest of Defendant. Defendant relies
upon the following finding of fact by the trial court;

               The video camera was working properly at the time of the stop and
        did not show any particularly damaging evidence that the defendant was
        impaired given the time of the stop which was in the early hours of the day.

Analysis

        Initially, we address Defendant’s assertions that the State was not entitled to an appeal
as of right pursuant to Tennessee Rule of Appellate Procedure 3(c). Defendant argues that
since the substantive effect of the trial court’s order did not result in a dismissal of the
indictment, then in order to appeal, the State had to seek an interlocutory appeal by
permission. See Tenn. R. App. P. 3(c)(1); see also Tenn. R. App. P. 9 and 10.

        Defendant submits that the trial court did not suppress evidence of the field sobriety
tests or any other evidence obtained prior to Defendant being formally placed under arrest.
The State disagrees and correctly notes in its reply brief that a plain reading of the trial
court’s order reveals “all evidence gathered by police following the initial detention” means
all evidence gathered after Defendant was pulled over and stopped by Trooper McCauley.
We agree with the State. Defendant is not entitled to relief on his argument that the State’s
appeal should be dismissed.

        As to the merits of this case, we will address only the issue presented by Defendant
in his motion and consistently argued by Defendant in this appeal by the State: that Trooper

                                               -5-
McCauley, while he had reasonable suspicion to stop Defendant to initiate an investigation,
still lacked probable cause to arrest Defendant for DUI. The State has asserted in its brief
that the trial court erred by granting the motion to suppress based solely upon the trooper’s
lack of reasonable suspicion to stop Defendant.

        Notwithstanding the State’s argument, reasonable suspicion to justify the stop is not
an issue. The only issue than can be reviewed is whether probable cause existed to justify
a warrantless arrest for DUI. The State failed to set forth any argument in its brief and reply
brief concerning the issue actually pertinent on appeal, i.e., whether probable cause existed
for Trooper McCauley to make a warrantless arrest of Defendant for DUI. Normally, failure
to argue an issue, and/or cite to relevant legal authority on the issue waives consideration of
the issue on appeal. See Tenn. R. App. P. 27(a)(7)(stating that appellant’s brief must contain
an argument “setting forth . . . the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the record . . .
relied on; and . . . for each issue, a concise statement of the applicable standard of review”);
Tenn. Ct. Crim. App. R. 10(b)(“Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this court.”).
Nevertheless, the record permits us to review the appropriate issue on its merits.

        In reviewing a trial court’s order disposing of a motion to suppress evidence, the
appellate court must look to the evidence and facts accredited by the trial court which are
most favorable to the prevailing party. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).
The appealing party, in this case, the State, bears the burden of demonstrating that the
evidence preponderates against the trial court’s findings. State v. Harts, 7 S.W.3d 78, 84
(Tenn. Crim. App. 1999). The findings of fact made by a trial judge on a motion to suppress
are conclusive and are afforded the weight of a jury verdict. An appellate court may not set
aside the trial court’s decision unless the evidence in the record preponderates against the
trial court’s findings. State v. Jackson, 889 S.W.2d 219, 222 (Tenn. Crim. App. 1993).
Questions of the credibility of the witnesses, the weight and value of the evidence, and a
resolution of the conflicts in the evidence are matters entrusted to the trial judge. State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

       A warrantless arrest of a defendant based upon probable cause for the commission of
the misdemeanor offense of DUI is permitted if the offense is committed in the officer’s
presence. Tenn. Code Ann. §§ 40-7-103(a)(1) and 40-7-118(b)(2)(A). The “probable cause”
must be that the defendant has committed the offense of DUI. “Whether probable cause is
present depends upon whether the facts and circumstances and reliable information known
to the police officer at the time of the arrest ‘were sufficient to warrant a prudent man in
believing that the [individual] had committed an offense.’” State v. Downey, 945 S.W.2d

                                               -6-
102, 106 (Tenn. 1997), quoting Beck v. Ohio, 379 U.S. 89, 91 (1964); State v. Henning, 975
S.W.2d 290, 300 (Tenn. 1998).

       More recently, our supreme court has stated,

                 A full-scale arrest supported by probable cause is, of course, an
        exception to the warrant requirements. State v. Hanning, 296 S.W.3d 44,
        48 (Tenn. 2009) (citing Brown v. Illinois, 422 U.S. 590, 598, 95 S.Ct. 2254,
        45 L.Ed.2d 416 (1975)). “Probable cause . . . exists if, 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.’” State v. Bridges, 963 S.W.2d 487, 491
        (Tenn. 1997) (second alteration in original) (quoting Beck v. Ohio, 379 U.S.
        89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)); see also State v. Richards,
        286 S.W.3d 873, 879 (Tenn. 2009) (“[T]he ‘prudent person’ standard
        provides the best guidance for law enforcement officers and reviewing
        courts.”). “Probable cause must be more than a mere suspicion.” State v.
        Lawrence, 154 S.W.3d 71, 76 (Tenn. 2005) (citing State v. Melson, 638
        S.W.2d 342, 350 (Tenn. 1982)). Nevertheless, probable cause “‘deal[s]
        with probabilities[,] . . . not technicalities,] . . . the factual and practical
        considerations of everyday life on which reasonable and prudent [persons]
        . . . act.’” State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008) (quoting
        Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879
        (1949)).

State v. Echols, 382 S.W.3d 266, 277-78 (Tenn. 2012).

       We are constrained to conclude, based upon the uncontradicted testimony of Trooper
McCauley, Defendant’s appropriate concession that there was “reasonable suspicion” to
make the stop, and our own viewing of the video tape of the detention prior to the arrest, that
the evidence preponderates against the factual findings of the trial court. See State v. Binette,
33 S.W.3d 215, 219-20 (Tenn. 2000)(Appellate court “[e]qually as capable as the trial court”
of reviewing videotaped evidence.). Specifically, we are referring to the trial court’s factual
findings that Defendant “did well” on the “9-step heel to toe” test, that the officer stated that
Defendant “did well” on the one leg stand test, “only touching the ground one time while
counting to twenty,” and that the video of the tests “did not show any particularly damaging
evidence that the defendant was impaired.”




                                               -7-
        We have summarized in detail the evidence submitted at the suppression hearing.
Defendant weaved while driving in his lane and crossed over the fog line on the left side of
the lane “several times.” Defendant’s performance of the heel-to-toe test with at least two
“clues” (made an improper turn, staggered and stepped off the line, took ten steps instead of
nine) and at least two “clues” (dropped his foot and swayed) while performing the one leg
stand test indicated a blood alcohol content of at least 0.08. Tennessee Code Annotated
section 55-10-401 (a)(2) provides that a person who drives a vehicle on a public highway of
the state with a blood alcohol concentration of 0.08 or more is guilty of DUI. Tennessee
Code Annotated section 55-10-401 (a)(1) provides that DUI is also proven by evidence that
a person drives a motor vehicle on the public highways of the state while under the influence
of an intoxicant. Tennessee Code Annotated section 55-10-408 provides that a blood alcohol
content of 0.08 or more creates a “presumption that the defendant’s ability to drive was
sufficiently impaired thereby to constitute a violation of Tenn. Code Ann. § 55-10-
401(a)(1).” Also taking into consideration Defendant’s admission that he had in fact
consumed “two beers” on the night in question, and his poor performance on the “finger to
nose” test, we conclude that there was probable cause to justify the arrest of Defendant for
DUI. Accordingly, the State is entitled to relief in this appeal.

                                      CONCLUSION

       The judgment of the trial court granting Defendant’s motion to suppress evidence is
reversed, all charges heretofore dismissed after the trial court granted the motion are hereby
reinstated, and this case is remanded to the trial court for further proceedings.

                                                   _________________________________
                                                   THOMAS T. WOODALL, JUDGE




                                             -8-
