        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  June 21, 2011 Session

             STATE OF TENNESSEE v. JOSEPH A. PATTERSON

               Appeal from the Criminal Court for Williamson County
                    No. 1-CR094413     Jeffrey S. Bivins, Judge




                No. M2010-02360-CCA-R3-CD - Filed August 22, 2011


The Defendant, Joseph A. Patterson, was found guilty at a bench trial before the Williamson
County Criminal Court of driving under the influence, second offense, a Class A
misdemeanor. See T.C.A. § 55-10-401 (2008) (amended 2010). He was sentenced to eleven
months and twenty-nine days, with fifty-five days of the sentence to be served. On appeal,
he contends that the trial court erred by denying his motion to suppress. We affirm the
judgment of the trial court.

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

J OSEPH M. T IPTON , P.J., delivered the opinion of the court, in which JOHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Dana C. McLendon, III (on appeal) and Ernest Williams (at trial), Franklin, Tennessee, for
the appellant, Joseph A. Patterson.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Kelly Lawrence, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       At the suppression hearing, Franklin Police Officer Tami Crowe testified that around
12:30 a.m. on May 15, 2009, she was working in the Cool Springs area on Baker’s Bridge
Road. She said she saw a car that “was swerving and crossing over the lines that indicate the
lanes of travel.” She turned on her emergency lights, but the car did not stop until a minute
to a minute and a half later after she activated the emergency audio equipment on her patrol
car. She said the car passed several parking lots and businesses where it could have stopped
sooner. She also noted that at a red light, the Defendant pulled past the line marking the
pedestrian lane. During Officer Crowe’s direct examination testimony, a video recording of
the traffic stop was played for the trial court. Officer Crowe also identified an aerial
photograph, which was received as an exhibit.

       On cross-examination, Officer Crowe acknowledged that the Defendant did not
appear to be trying to evade the stop after she activated her emergency lights. She said the
video recording showed the swerving she saw. On questioning by the court, she clarified that
she based the stop on the driving shown on the video recording and not on anything that
occurred earlier.

       After receiving the evidence at the suppression hearing, the trial court observed:

              As to the first issue as to whether there was reasonable suspicion
              for the initial stop or not, the Court does note that Officer Crowe
              has directly testified witnessing the Defendant . . . cross over the
              lines and not stay within his – not maintain his lane of travel in
              this matter. Although the Court certainly notes the video is
              difficult to see given the darkness of the video, it does appear on
              at least one occasion that he did move over toward the other
              lane. Now, quite frankly, whether that was a lane change or
              whether it’s a moving out of that, it’s difficult for the Court to
              determine.

              ...

                      Therefore, the Court will credit the testimony – the direct
              testimony of Officer Crowe and find that the video does not
              contradict the testimony. While not greatly corroborative of it,
              [the Court] does not find in this matter that it impeaches that
              testimony. And as such, the Court will find that to be sufficient
              reasonable suspicion to justify the stop by Officer Crowe in the
              matter.

        The record does not contain a transcript of the Defendant’s trial. The parties have,
however, included a filed document stating that “the evidence offered at trial that is relevant
to the issue to be raised on appeal is substantively identical to the testimony offered by FPD
Officer Tami L. Crowe during her testimony [at the suppression hearing]” and adopting the
suppression hearing transcript as the statement of the evidence at trial. The document
identified the issue to be raised on appeal as “whether the trial court correctly interpreted and
applied TCA § 6-54-301.” That statute relates to police authority beyond city and town

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corporate limits. On appeal, however, the Defendant has challenged the substantive basis
upon which the trial court denied the motion to suppress.

       The Defendant contends that the trial court erred by denying his motion to suppress
because Officer Crowe stopped the Defendant without reasonable suspicion or probable
cause to believe the Defendant was driving while impaired. The State contends that the
Defendant’s driving provided specific and articulable facts on which Officer Crowe based
her reasonable suspicion. We agree with the State.

       A trial court’s factual findings on a motion to suppress are conclusive on appeal unless
the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);
State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Furthermore, questions about
the “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.” Odom,
928 S.W.2d at 23. The application of the law to the facts as determined by the trial court is
a question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626,
629 (Tenn. 1997).

        The Fourth Amendment to the United States Constitution and article 1, section 7 of
the Tennessee Constitution protect against unreasonable searches and seizures. See State v.
Downey, 945 S.W.2d 102, 106 (Tenn. 1997). An automobile stop constitutes a seizure
within the meaning of these constitutional provisions. Michigan Dep’t of State Police v. Sitz,
496 U.S. 444, 450 (1990); State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993); State v. Binion,
900 S.W.2d 702, 705 (Tenn. Crim. App. 1994). The police may stop a vehicle if they have
reasonable suspicion based upon specific and articulable facts that an occupant is violating
or is about to violate the law. See United States v. Brignoni-Ponce, 422 U.S. 873 (1975);
State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992); Hughes v. State, 588 S.W.2d 296, 305
(Tenn. 1979). In determining whether an officer’s reasonable suspicion is supported by
specific and articulable facts, “a court must consider the totality of the circumstances–the
entire picture.” State v. Moore, 775 S.W.2d 372, 377 (Tenn. Crim. App. 1989).

       In support of his argument that the stop was unconstitutional, the Defendant notes that
the only proof to support the trial court’s finding that Officer Crowe had reasonable suspicion
was the evidence he swerved and failed to remain in his lane. He cites two Tennessee
Supreme Court cases to support his argument that this did not provide sufficient reasonable
suspicion to support a traffic stop.

        The first is State v. Binette, 33 S.W.3d 215 (Tenn. 2000), in which a police officer
followed the defendant for several minutes and videotaped the defendant’s driving. The
officer narrated the videotape as he made it, stating that he observed the defendant cross the
yellow line, swerve in his lane, and travel about fifteen miles over the speed limit. The

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officer did not testify at the hearing, but the videotape was received as evidence. The
defendant testified that he did not make the driving errors alleged in the officer’s statements
on the videotape. After reviewing the videotape, the trial court found that it demonstrated
“fairly significant weaving” by the defendant. The trial court held that the weaving it
observed on the videotape provided reasonable suspicion for the officer to stop the defendant.
Id. at 216. The supreme court disagreed, stating, “We simply do not find any evidence of
pronounced weaving or hard swerving by Binette, and we disagree with the State’s
contention that the videotape shows that Binette touched the center line at least four times.”
Id. at 219. The court noted the defendant’s correct driving through several intersections, his
maintaining a proper distance from other cars, and his travel on a winding road. The
supreme court said that contrary to the officer’s statements on the videotape, the tape did not
reflect that the defendant violated any rules of the road. Id. at 219. Thus, the supreme court
held that the State failed to establish reasonable suspicion to support the stop and that the trial
court erred in denying the motion to suppress. Id. at 220. The supreme court noted,
however, that the case presented the unusual situation of no in-court testimony by the officer
and the trial court’s ruling reling entirely on its own perceptions from viewing the videotape.
The court also noted that the trial court failed to make a credibility finding about the
defendant’s testimony and that even if the defendant’s testimony were discredited, the
videotape offered by the State did not support a finding of reasonable suspicion. Id.

        The second case the Defendant cites is State v. Garcia, 123 S.W.3d 335 (Tenn. 2003),
in which an officer testified that she saw the defendant’s car “swerving in its lane of traffic”
from the right-hand marker to the left-hand marker. Id. at 338. The officer testified that she
stopped the defendant because she thought he might be intoxicated, for the defendant’s
safety, and for the safety of others. Id. She testified at the trial that she was also concerned
the defendant might be falling asleep. Id. at 341. A videotape of the stop was received as
evidence, although there was a malfunction of the audio on the tape. Id. at 340. The trial
court ruled that there was reasonable suspicion for the stop, and this court affirmed the denial
of the motion to suppress but reversed the conviction based upon trial error. Id. at 337, 341-
42. On review, the supreme court noted that the officer’s testimony of the defendant’s errant
driving was at odds with the court’s review of the videotape reflecting that the defendant did
not weave, appear to speed, or make sharp or jerking movements. The court said that the
videotape reflected only that the defendant “slowly moved his vehicle within his lane of
travel approximately twice over a period of approximately two minutes” and that other cars
easily passed the defendant’s car. Id. at 345. The supreme court held that the evidence
preponderated against the trial court’s conclusion that the totality of the circumstances
established reasonable suspicion for the stop. Id.

       In the present case, Officer Crowe testified that before she began the stop, she saw the
Defendant “swerving and crossing over the lines that indicate the lanes of travel.” The trial
court accredited this testimony. We have reviewed the video recording, and we note its poor

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quality due to inadequate lighting. The tape reflects side-to-side movement by the
Defendant’s car, but due to the low lighting and the angles from which the video was
recorded, it is not apparent whether the Defendant crossed the outside lines of his lane. We
agree with the trial court’s assessment that the tape is neither highly corroborative of nor
contradictory to Officer Crowe’s testimony. Based upon the accredited testimony of Officer
Crowe that the Defendant was swerving and crossing over the lines marking the lanes and
the lack of definitive proof about the Defendant’s driving from the videotape, we hold that
the evidence does not preponderate against the trial court’s determination that Officer Crowe
had reasonable suspicion to stop the Defendant.

       In so holding, we have rejected the Defendant’s analogy of his case to Binnette and
Garcia. In Binette, the officer’s statements on the videotape were contradicted by the video
portion of the tape. Likewise, in Garcia, the officer’s testimony about the defendant’s
driving was at odds with the recorded video evidence. As we noted, Officer Crowe’s
testimony is neither corroborated nor impeached by the video recording of the Defendant’s
driving. Further, in both Binette and Garcia, the video evidence demonstrated at most that
the defendants moved within their lanes of travel. In this case, Officer Crowe testified that
the Defendant was swerving and crossing over the lines marking the lane boundaries. The
Defendant is not entitled to relief.

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

                                                   ____________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE




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