                                                                                        04/26/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs April 3, 2018 at Jackson

           STATE OF TENNESSEE v. JAMES LARRY WILLIAMS

                Appeal from the Circuit Court for Williamson County
                   No. II-CR170166 James G. Martin III, Judge


                            No. M2017-01830-CCA-R3-CD



The Defendant, James Larry Williams, entered a guilty plea to driving under the
influence (DUI), reserving a certified question of law challenging whether there existed
sufficient probable cause that a violation of Tennessee Code Annotated section 55-8-
123(1) had occurred or reasonable suspicion based upon the totality of the circumstances
to justify a traffic stop of the Defendant’s vehicle. 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


D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.

Walter W. Bussart, Lewisburg, Tennessee, for the appellant, James Larry Williams.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Kim R. Helper, District Attorney General; and Tristan R. P. Poorman and Christopher K.
Vernon, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

       On March 13, 2017, the Williamson County Grand Jury returned an indictment
charging the Defendant with DUI and DUI per se, which is driving under the influence
with a blood alcohol content of .08% or greater. See Tenn. Code Ann. § 55-10-401(1),
(2). On April 5, 2017, the Defendant filed a motion to suppress “any illegally obtained or
inadmissible evidence,” which was followed by a supplementary memorandum on June
26, 2017, specifying the evidence to be suppressed as the arresting officer’s “dash cam
video” and “all evidence flowing from the stop.”

       A hearing was held on the motion to suppress on July 7, 2017. At the hearing,
Deputy William Harris of the Williamson County Sheriff’s Office testified that shortly
before midnight on April 28, 2016, he received a be-on-the-lookout report (BOLO)
involving a silver Infiniti with a possible tag identification travelling southbound on
Hillsboro Road. The deputy was at the intersection of Hillsboro Road and South Berry’s
Chapel Road when he observed a silver Infiniti turn onto Cotton Lane. Deputy Harris
began to follow the vehicle and confirmed through dispatch that the tag number of the
vehicle matched the tag number in the BOLO report. The deputy testified that while
following the vehicle, he observed it “cross the fog line on the right side, and then bounce
and cross the left double yellow line three times” prior to making the decision to stop the
vehicle.

       Deputy Harris’s dash cam video was entered into evidence and played for the
court. The deputy indicated to the court the times during the video at which he observed
the vehicle’s crossing the fog line and also crossing the center line.

       On cross-examination, Deputy Harris conceded that the road was dark and did not
have lighting, the road did not have shoulders, the lines were faded, mailboxes were close
to the road, and the road “follow[ed] the contour[s] of the land . . . [with] dips[,] . . .
mounds[,] and curves.” The deputy also conceded that there would be times when a
prudent driver would not be expected to “navigate this roadway perfectly within the
lane.” The deputy acknowledged that several of the residential driveways on that road
were gravel driveways, but he denied observing any gravel in the road that night.

      The Defendant offered as proof a portion of Deputy Harris’s dash cam video that
was digitally brightened for clarity. The State moved this video into evidence.

        At the conclusion of proof, the Defendant argued that he travelled over the double
yellow line because of the nature of the road, to intentionally avoid mailboxes that were
close to the road, and to avoid gravel that had eroded into the road from driveways. The
trial court then made the following findings of fact:

       The [c]ourt has been able to observe the video now twice. There was
       considerable weaving within the lane, there’s no dispute about that at all. It
       was clear to the [c]ourt, from the observation of the video, that the driver of
       the vehicle, [the Defendant], crossed the center line on three occasions.
       The deputy indicated that there was also an occasion when the vehicle
       crossed the right fog line. That was not as clear to the [c]ourt as I observed
       the video, but it was clear to the [c]ourt that there was a crossing of the
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       center line on three occasions. The [c]ourt believes, and finds, that based
       upon those facts and circumstances, there was a violation of state law and
       that this deputy had probable cause to make the stop.

       The court’s order overruling the motion to suppress similarly reflected that “the
Defendant was weaving within his lane throughout the video,” that “the Defendant
clearly crossed the double [] yellow line on three separate occasions,” and that “Deputy
Harris testified he observed the Defendant cross the right fog line, but that observation is
not clear from the video.” The trial court concluded that “based on all the evidence” the
deputy “had probable cause to initiate a traffic stop for violation of T[ennessee] C[ode]
A[nnotated] [section] 55-8-123, [f]ailure to [m]aintain lane.”

       On August 10, 2017, the Defendant pled guilty to driving under the influence in
violation of Tennessee Code Annotated section 55-10-401, with the two counts under the
indictment to merge. The Defendant was sentenced to eleven months and twenty-nine
days, with forty-eight hours to serve and the remainder of the sentence on supervised
probation. As part of the guilty plea, the Defendant reserved with the consent of the State
and the trial court the following certified question:

       Whether the stop of the Defendant’s vehicle by Deputy William Harris of
       the Williamson County Sheriff’s Department on April 28, 2016, violated
       Defendant’s rights granted pursuant to the Fourth Amendment to the U. S.
       Constitution and Article I, Section [] 7 of the Tennessee Constitution and
       whether any evidence, statements and blood tests obtained as a result of
       said stop should be suppressed as the fruits of an unconstitutional seizure,
       due to the fact that there was no probable cause that a traffic violation ha[d]
       been committed under Tenn. Code Ann. § 55-8-231(1), and there was no
       reasonable suspicion based on the totality of the circumstances, where
       Defendant was observed driving on a narrow, hilly, curvy, shoulderless
       road with portions of unclear lane markers for a distance of approximately
       3 miles at night?

(alterations in original). The Defendant, the State, and the trial court are in agreement
that the certified question is dispositive in this case.

                                        ANALYSIS

       On appeal, the Defendant contends that he properly reserved a certified question
of law and that the trial court erred in denying his motion to suppress. The State agrees
that the Defendant has properly reserved the certified question but asserts that the
Defendant is not entitled to relief. We note that the Defendant and the State recognize
and agree in their briefs that, from the context of the case, the statutory citation within the
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certified question was intended to be Tennessee Code Annotated section 55-8-123(1) and
not section 55-8-231(1).

                                    Certified Question

       Tennessee Rule of Criminal Procedure 37(b)(2)(A) provides that a certified
question may be reserved when:

      (A) [T]he defendant entered into a plea agreement under Rule 11(c) but
      explicitly reserved—with the consent of the state and of the court—the
      right to appeal a certified question of law that is dispositive of the case, and
      the following requirements are met:

      (i) the judgment of conviction or order reserving the certified question that
      is filed before the notice of appeal is filed contains a statement of the
      certified question of law that the defendant reserved for appellate review;

      (ii) the question of law as stated in the judgment or order reserving the
      certified question identifies clearly the scope and limits of the legal issue
      reserved;

      (iii) the judgment or order reserving the certified question reflects that the
      certified question was expressly reserved with the consent of the state and
      the trial court; and

      (iv) the judgment or order reserving the certified question reflects that the
      defendant, the state, and the trial court are of the opinion that the certified
      question is dispositive of the case[.]

See also Tenn. R. Crim. P. 37(b)(2)(D); State v. Preston, 759 S.W.2d 647, 650 (Tenn.
1988).

       Generally, a “question is dispositive when the appellate court must either affirm
the judgment [of conviction] or reverse and dismiss [the charges].” State v. Dailey, 235
S.W.3d 131, 134 (Tenn. 2007) (internal quotations and citations omitted). “If the
appellate court does not agree that the certified question is dispositive, appellate review
should be denied.” Preston, 759 S.W.2d at 651. “A certified question may be rendered
nondispositive by the failure to raise an underlying issue when the determination of that
underlying issue is necessarily the basis of the disputed question.” State v. Prince
Dumas, No. W2015-01026-CCA-R3-CD, 2016 WL 4083256, at *3 (Tenn. Crim. App.
Aug. 1, 2016). This court “is not bound by the determination and agreement of the trial
court, a defendant, and the State that a certified question of law is dispositive of the
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case.” Dailey, 235 S.W.3d at 134–35 (quoting State v. Thompson, 131 S.W.3d 923, 925
(Tenn. Crim. App. 2003)). This court “must make an independent determination that the
certified question is dispositive.” Id. at 135 (citing Preston, 759 S.W.2d at 651).

       Our supreme court has held that a “dispositive certified question of law . . . must
be stated so as to clearly identify the scope and the limits of the legal issue reserved.”
Preston, 759 S.W.2d at 650.

       [W]here questions of law involve the validity of searches and the
       admissibility of statements and confessions, etc., the reasons relied upon by
       [the] defendant in the trial court at the suppression hearing must be
       identified in the statement of the certified question of law and review by the
       appellate courts will be limited to those passed upon by the trial judge and
       stated in the certified question, absent a constitutional requirement
       otherwise.

Id.

        Here, the Defendant’s certified question is limited to whether there existed
probable cause that the Defendant had violated Tennessee Code Annotated section 55-8-
123(1) for failing to maintain his lane of travel or reasonable suspicion based upon the
totality of the circumstance to justify the stop. The trial court’s judgment incorporated by
reference the agreed order, which set out the certified question and stated that the
Defendant reserved the certified question with the express consent of both the trial court
and the State. The agreed order also stated that the Defendant, the State, and the trial
court believed that the certified question was dispositive of the Defendant’s case. We
also find that the certified question sufficiently limited the scope of the legal issue and
that the certified question is dispositive of the Defendant’s case. Thus, the Defendant has
complied with the requirements of Preston and Tennessee Rule of Criminal Procedure 37,
and we conclude that this issue is properly before this court.

                                  Suppression of Evidence

       The Defendant argues that the trial court abused its discretion when it denied his
motion to suppress because the deputy did not have probable cause or reasonable
suspicion to stop the Defendant for failure to maintain his lane of travel. The Defendant
contends in his brief that this case is “solely . . . a ‘probable cause’ case” as this case
“was not decided on reasonable suspicion.” The Defendant, nevertheless, raises the issue
of reasonable suspicion in his certified question. The State responds that the deputy had
reasonable suspicion that the Defendant “left his lane of travel when it was practicable to
remain there and/or left [his] lane of travel without first ascertaining that it was safe to do
so” in violation of Tennessee Code Annotated section 55-8-123(1). The State also
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submits that the deputy had probable cause to believe the Defendant “crossed the center
line of the roadway” in violation of Tennessee Code Annotated section 55-8-115;
however, that violation is outside the scope of the certified question and also the trial
court’s ruling.

       Our supreme court has stated:
               The Fourth Amendment to the United States Constitution proscribes
       “unreasonable searches and seizures” and provides that “no Warrant shall
       issue, but upon probable cause . . . particularly describing . . . the persons . .
       . to be seized.” Likewise, Article I, Section 7 of the Tennessee Constitution
       states that “the people shall be secure in their persons . . . from
       unreasonable searches and seizures.” Because traffic stops constitute
       seizures entitling a vehicle’s occupants to the full protections of the United
       States and Tennessee Constitutions, the authorities must act reasonable
       when initiating a traffic stop.

              The United States Supreme Court has interpreted this requirement to
       mean that the authorities must have probable cause or an “articulable and
       reasonable suspicion” to believe that a traffic violation has occurred when
       they initiate a traffic stop.

State v. Brotherton, 323 S.W.3d 866, 870 (Tenn. 2010) (internal citations omitted).

       There are three levels of police-citizen interactions: (1) a full-scale arrest, which
must be supported by probable cause in order to be valid; (2) a brief investigatory
detention, which must be supported by a reasonable suspicion, based upon specific and
articulable facts, of criminal wrong-doing; and (3) a brief “encounter” which requires no
objective justification. State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008). “Moreover, the
distinction between a stop based on probable cause and a stop based on reasonable
suspicion is not simply academic. . . . [R]easonable suspicion will support only a brief,
investigatory stop.” State v. Smith, 484 S.W.3d 393, 409 (Tenn. 2016).

        A reasonable basis for a stop is something more than an “inchoate and
unparticularized suspicion or ‘hunch.’” Terry v. Ohio, 392 U.S. 1, 27 (1968). “The
evaluation [of reasonable suspicion] is made from the perspective of the reasonable
officer, not the reasonable person.” Smith, 484 S.W.3d at 402 (quoting United States v.
Quintana-Garcia, 343 F.3d 1266, 1270 (10th Cir. 2003)) (alteration and emphasis in
original). “[B]ecause a court reviews the validity of a stop from a purely objective
perspective, the officer’s subjective state of mind is irrelevant, and the court may
consider relevant circumstances demonstrated by the proof even if not articulated by the
testifying officer as reasons for the stop[.]” Smith, 484 S.W.3d at 402 (internal citations
omitted).
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       We note that this case does not address the issue of whether the Defendant’s
driving as observed by Deputy Harris provided probable cause or reasonable suspicion
that the Defendant was driving under the influence in violation of Tennessee Code
Annotated section 55-10-401. Although driving under the influence is the offense to
which the Defendant pled guilty as a result of the stop, the deputy stated that he stopped
the Defendant based upon the Defendant’s failure to maintain his lane.

       Tennessee Code Annotated section 55-8-123(1) provides: “A vehicle shall be
driven as nearly as practicable entirely within a single lane and shall not be moved from
that lane until the driver has first ascertained that the movement can be made with
safety[.]” A violation of this statute has been criminalized as a Class C misdemeanor.
Tenn. Code Ann. § 55-8-103. In determining the constitutionality of a traffic stop based
on Tennessee Code Annotated section 55-8-123(1), we are guided by our supreme court’s
analysis of the statute in Smith. In Smith, our supreme court interpreted the language “as
nearly as practicable” to mean that motorists “must not leave [their] lane any more than is
made necessary by the circumstance requiring the lane excursion.” 484 S.W.3d at 409.
The court determined that officers usually would not be able to ascertain a motorist’s
reasoning for the lane excursion, but would have reasonable suspicion to investigate
further. Id. at 410. The court rejected the bright-line rule that probable cause is always
established by a lane excursion, id.; however, our supreme court “recognize[d] that some
lane excursions may be so egregious that they will support probable cause to stop the
motorist.” Id. at 411 n.13.

        A trial court’s findings of fact are binding on this court unless the evidence in the
record preponderates against them. State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012)
(citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). “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.” Id. The prevailing
party is entitled to the strongest legitimate view of the evidence adduced at the
suppression hearing and all reasonable and legitimate inferences that may be drawn
therefrom. Id. The trial court’s application of law to the facts is reviewed under a de
novo standard with no presumption of correctness. Id. (citing State v. Walton, 41 S.W.3d
75, 81 (Tenn. 2001)).

         Using Smith as our guide, we conclude that, in the case under submission, the
deputy was justified in stopping the Defendant’s vehicle based on probable cause that a
violation of Tennessee Code Annotated section 55-8-123(1) had occurred. Deputy Harris
testified, and the video confirmed, that the Defendant’s vehicle clearly crossed the center
line on three occasions. The trial court found that these lane excursions were in
conjunction with “considerable weaving within the lane” and established probable cause.
Thus, in the trial court’s opinion, the Defendant’s lane excursions must have risen to the

                                             -7-
level of egregiousness recognized by our supreme court that would establish probable
cause that a vehicle was not driven as nearly as practicable within a single lane in
violation of Tennessee Code Annotated section 55-8-123(1). See Smith, 484 S.W.3d at
411 n.13. The trial court did not find that the lane excursions were warranted by road
conditions or hazards. Upon review of the record and the videos introduced at the
suppression hearing, we find that the evidence does not preponderate against the
egregious nature finding of the Defendant’s lane excursions. We conclude that the trial
court did not err when it denied the Defendant’s motion to suppress evidence obtained as
a result of the traffic stop.

                                   CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.
                                                _______________________________________

                                                D. KELLY THOMAS, JR., JUDGE




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