        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs February 23, 2012

            STATE OF TENNESSEE v. ALAN BRYANT MINCHEW

                 Appeal from the Circuit Court for Williamson County
                    No. IICR045574       Timothy L. Easter, Judge


                   No. M2011-01863-CCA-R3-CD - Filed May 3, 2012


The defendant, Alan Bryant Minchew, pleaded guilty to first offense driving under the
influence of an intoxicant (“DUI”) with a blood alcohol level of .08% or more and reserved
as a certified question the propriety of the vehicle stop leading to his arrest. Determining that
the evidence does not preponderate against the trial court’s findings in its order denying the
motion to suppress, we affirm the judgment of the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and J EFFREY S. B IVINS, JJ., joined.

Venus Niner, Franklin, Tennessee, for the appellant, Alan Bryant Minchew.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, 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 August 9, 2011 evidentiary hearing on the motion to suppress,
Tennessee Highway Patrol Trooper Charles Achinger testified that he worked the 10:00 p.m.
to 6:00 a.m. shift on November 19, 2010. At approximately 1:53 a.m., Trooper Achinger
received a report from dispatch to be on the lookout (“BOLO”) for a “large black pickup
truck swerving [down] I[nterstate]-65 southbound at Concord Road with a partial tag of
339.” Trooper Achinger was traveling westbound on Moores Lane at the interstate crossing,
about one and one-half miles south of Concord Road, so he immediately entered the
southbound lane of the interstate via the Moores Lane ramp. As he entered the interstate,
Trooper Achinger observed a truck matching the description contained in the BOLO. When
Trooper Achinger sped up to meet the truck, he observed the vehicle “swerve[] outside of
its lane to the left, and then back,” straddling the line between the two lanes. He also
observed the vehicle “drift[ing] back and forth between the lanes, not crossing them, but
touching them.” Trooper Achinger testified that the truck was traveling approximately 55
miles per hour in a 70-miles-per-hour-zone. He followed the vehicle for approximately one
mile and confirmed that the partial tag number was 339 on the monitored vehicle. Trooper
Achinger stopped the defendant’s vehicle and ultimately arrested the defendant for driving
under the influence.

               Trooper Achinger testified that the defendant’s swerving was a sign of
“possible impairment” and that he would have stopped the defendant’s vehicle based upon
his own observations of the operation of the vehicle absent his receiving the BOLO alert.
Trooper Achinger testified that he did not see the defendant initiate his turn signal throughout
the observation until Trooper Achinger activated his blue lights to stop the vehicle. He
maintained at the suppression hearing that the defendant’s failure to maintain his lane of
traffic was an offense justifying the stop.

               At the evidentiary hearing on the motion to suppress, the defendant argued that
Trooper Achinger lacked reasonable suspicion to justify the stop of his vehicle. The trial
court accredited the testimony of Trooper Achinger and noted that the trooper’s dashboard
camera video recording confirmed the trooper’s testimony. The video recording shows the
defendant’s truck straddling the line between two lanes for some time while traffic is passing
in the neighboring lane. The video recording further reveals the truck’s swerving within the
lane, frequently touching or driving on both the dotted line dividing the lanes and the fog line
of the shoulder. The court found that Trooper Achinger’s observations of the vehicle
immediately confirmed the BOLO report and that specific and articulable facts, the
defendant’s erratic driving and slow speed, justified the stop of the vehicle. Accordingly, the
trial court denied the defendant’s motion to suppress.

              On August 23, 2011, the defendant pleaded guilty to DUI, first offense and
DUI with a blood alcohol concentration of .08% or above, and the trial court merged those
counts. At the plea submission hearing, the defendant acknowledged that his blood alcohol
concentration was .10% on the night of the offense. The defendant also reserved, with the
consent of the State and the trial court, a certified question of law that is dispositive of the
case: “Whether the motion to suppress should have been granted as the stop of the
defendant’s vehicle was unlawful because the officer lacked reasonable suspicion?”
Discerning that this question was properly certified pursuant to Tennessee Rule of Criminal
Procedure 37(b), we will examine the trial court’s ruling on the motion to suppress.

              When reviewing a trial court’s findings of fact and conclusions of law on a

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motion to suppress evidence, we are guided by the standard of review set forth in State v.
Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court’s findings of fact in
a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id. at
23. When the trial court does not set forth its findings of fact upon the record of the
proceedings, however, the appellate court must decide where the preponderance of the
evidence lies. Fields v. State, 40 S.W.3d 450, 457 n.5 (Tenn. 2001). As in all cases on
appeal, “[t]he prevailing party in the trial court is afforded the ‘strongest legitimate view of
the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978
S.W.2d 861, 864 (Tenn. 1998)). We review the trial court’s conclusions of law under a de
novo standard without according any presumption of correctness to those conclusions. See,
e.g., State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299
(Tenn. 1999).

               Because stopping an automobile without a warrant and detaining its occupants
unquestionably constitutes a seizure, Delaware v. Prouse, 440 U.S. 648, 653 (1979), the
State in the present situation carried the burden of demonstrating the applicability of an
exception to the warrant requirement, see, e.g., State v. Cox, 171 S.W.3d 174, 179 (Tenn.
2005) (temporary detention of an individual during a traffic stop constitutes seizure that
implicates the protection of both the state and federal constitutions); Keith, 978 S.W.2d at
865. The authority of a police officer to stop a citizen’s vehicle is circumscribed by
constitutional constraints. Police officers are constitutionally permitted to conduct a brief
investigatory stop supported by specific and articulable facts leading to reasonable suspicion
that a criminal offense has been or is about to be committed. Terry v. Ohio, 392 U.S. 1, 20-
23 (1968); State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2002). Whether reasonable suspicion
existed in a particular case is a fact-intensive, but objective, analysis. State v. Garcia, 123
S.W.3d 335, 344 (Tenn. 2003). The likelihood of criminal activity that is required for
reasonable suspicion is not as great as that required for probable cause and is “considerably
less” than would be needed to satisfy a preponderance of the evidence standard. United
States v. Sokolow, 490 U.S. 1, 7 (1989). A court must consider the totality of the
circumstances in evaluating whether a police officer’s reasonable suspicion is supported by
specific and articulable facts. State v. Hord, 106 S.W.3d 68, 71 (Tenn. Crim. App. 2002).
The totality of the circumstances embraces considerations of the public interest served by the
seizure, the nature and scope of the intrusion, and the objective facts on which the law
enforcement officer relied in light of his experience. See State v. Pulley, 863 S.W.2d 29, 34
(Tenn. 1993). The objective facts on which an officer relies may include his or her own
observations, information obtained from other officers or agencies, offenders’ patterns of
operation, and information from informants. State v. Watkins, 827 S.W.2d 293, 294 (Tenn.
1992).



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               The defendant argues on appeal that his driving imperfections did not rise to
the level of affording reasonable suspicion to justify Trooper Achinger’s stop. In this case,
however, “the defendant’s driving constituted more than garden variety imperfect driving.”
See State v. Bobby Gene Walker, Jr., No. E2005-02200-CCA-R3-CD, slip op. at 4 (Tenn.
Crim. App., Knoxville, July 26, 2006). Someone traveling on the interstate observed the
defendant’s “erratic” operation of his vehicle, prompting a telephone call to the Brentwood
Police Department and the ensuing BOLO alerting Trooper Achinger. Trooper Achinger
observed the vehicle’s swerving into another lane and straddling the line between the lanes
for a period of time. He also observed the vehicle’s swerving within its own lane and
touching the lines on numerous occasions. The video recording from the trooper’s dashboard
camera confirmed the trooper’s testimony. The defendant also drove 15 miles below the
speed limit. These circumstances are distinguishable from the minor imperfections in driving
that our supreme court described in Binette. See Binette, 33 S.W.3d at 219-20; see also, e.g.,
State v. Joseph A. Patterson, M2010-02360-CCA-R3-CD (Tenn. Crim. App., Nashville, Aug.
22, 2011) (trial court accredited officer’s testimony concerning defendant’s swerving
constituted reasonable suspicion to support traffic stop); State v. Jerome D. Manning, No.
M2001-03128-CCA-R3-CD (Tenn. Crim. App., Nashville, Dec. 20, 2002) (reasonable
suspicion existed when defendant’s vehicle twice crossed the center line into the opposite
travel lane and crossed onto the right shoulder); State v. Chris A. Jefferson, No. E2000-
00429-CCA-R3-CD (Tenn. Crim. App., Knoxville, Dec. 8, 2000) (reasonable suspicion
supported traffic stop when defendant was observed “cutting a ‘z’ continuously” from dotted
center line to shoulder fog line). In the present case, the trial court accredited the testimony
of Trooper Achinger, and the evidence does not preponderate against the trial court’s
findings. Accordingly, we affirm the trial court’s denial of the motion to suppress. The
judgment of the trial court is affirmed.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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