        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  June 9, 2015 Session

               STATE OF TENNESSEE v. ROY D. SEAGRAVES

                Appeal from the Circuit Court for Williamson County
                    No. IICR078140      Walter C Kurtz, Judge


              No. M2014-02334-CCA-R3-CD – Filed November 5, 2015
                        _____________________________

Pursuant to a negotiated plea agreement, Defendant, Roy Seagraves, pleaded guilty to
driving under the influence of an intoxicant. He properly reserved a certified question of
law for appeal. The question of law is dispositive of the case. Having reviewed the
record in this case, we hold that the evidence does not support the trial court‟s finding
that the police officer had reasonable suspicion to stop Defendant‟s vehicle.
Accordingly, we reverse the judgment of the trial court and dismiss the charges with
prejudice.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

Chadwick W. Jackson, Nashville, Tennessee, for the Appellant, Roy D Seagraves.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       Defendant was indicted in a three-count indictment for driving under the influence
of an intoxicant, driving with a blood or breath alcohol content of .08 percent or greater,
and driving with a blood or breath alcohol content of .20 percent or greater. Defendant
filed a motion to suppress evidence, asserting that the officer did not have reasonable
suspicion or probable cause necessary to justify the stop of his vehicle. Following an
evidentiary hearing, the trial court denied Defendant‟s motion. Pursuant to Tennessee
Rule of Criminal Procedure 37(b)(2)(A)(iv), Defendant entered a conditional plea of
guilty to first offense DUI and reserved as a dispositive question of law for appeal the
issue of the lawfulness of the stop. The negotiated plea agreement provided for a
sentence of 11 months and 29 days in the county workhouse, suspended after serving
seven days; a fine of $350; a suspension of Defendant‟s driving privileges; and a
requirement that Defendant attend alcohol safety school. The remaining counts were
merged. An agreed order was entered by the trial court reserving the following certified
question of law: “Whether the traffic stop was supported by articulable reasonable
suspicion that a crime was being committed or probable cause that a traffic offense had
occurred, thus legally justifying the initial seizure of the defendant?”

Suppression hearing

       Officer Adam Cohen, of the Franklin Police Department, stopped Defendant‟s
vehicle in the early morning hours on January 25, 2014. Officer Cohen was on patrol in
the area of Murfreesboro Road and Carothers Parkway in Franklin. At approximately,
2:25 a.m., Officer Cohen observed a vehicle turn eastbound onto Murfreesboro Road
from an adjoining road in front of his patrol car. The vehicle was traveling in the same
direction as Officer Cohen. Officer Cohen followed the vehicle. He “observed it
swaying back and forth within it‟s [sic] lane of travel. As the vehicle continued to drive,
it drove over the yellow line and made extremely wide turns as the road turned.” Officer
Cohen testified that he believed the vehicle “crossed over the yellow line one time. And
then also drove onto it.” Officer Cohen testified that the vehicle drove approximately
five miles per hour below the posted speed limit. The vehicle weaved within its lane of
travel. Officer Cohen testified that he observed the vehicle for “about a mile to a mile
and a half.”

        A dashboard video recording was played for the court. The video shows
Defendant‟s vehicle pull onto the road in front of Officer Cohen‟s patrol car at 2:23:17
a.m., traveling eastbound, the same direction as Officer Cohen. Defendant‟s vehicle
drifted towards the right eastbound lane while driving around a curve in the road to the
left. Defendant‟s vehicle then drifted left towards the center turning lane, and his left
tires touched the center dividing line but did not cross the line. Defendant then drifted
two more times to the left and almost touched the center line. He then drifted again to the
right two more times and almost touched the line. Officer Cohen activated his blue lights
at 2:25:09 a.m., and stopped Defendant‟s vehicle.

        Officer Cohen testified that he stopped Defendant‟s vehicle because Defendant‟s
“vehicle crossed over the yellow line and then drove onto the yellow line, white line on a
couple of occasions. It was also making wide turns and weaving within its lane of
travel.”

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      At the conclusion of the suppression hearing, the trial court denied Defendant‟s
motion to suppress. The court made the following findings and conclusions:

              You know, I think this is a pretty close call. But I do conclude this
        – there are several factors that [a]ffect the Judge‟s decision. One, the
        Officer followed this vehicle for about a mile to a mile and a half. Yes,
        the weaving within the lane would not be enough by itself except that
        this weaving, even within the lane, was continuous through this –
        through this mile, mile and a half, and by my own observation consistent
        with the Officer‟s testimony. The Defendant touched lines on his left,
        then he would go over and tou[ch] the lines on his right and back to the
        other side.

             So, while it is a close call, I think my observations of the tape and
        the Officer‟s testimony convinced me that he has had reasonable
        suspicion consistent with constitutional standards.

        We note that the trial court did not find that Defendant crossed over any line in the
road. Our review of the video confirms that Defendant‟s vehicle never crossed over any
line in the road.

Analysis

       In reviewing the trial court‟s decision on a motion to suppress, we review the trial
court‟s legal conclusions de novo. State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008).
In doing so, we give deference to the trial judge‟s findings of fact unless the evidence
preponderates otherwise. Id.; see State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State
v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). “„[C]redibility 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.‟” Northern, 262 S.W.3d at 747-48 (quoting
Odom, 928 S.W.2d at 23). In reviewing the findings of fact, evidence presented at trial
may “„be considered by an appellate court in deciding the propriety of the trial court‟s
ruling on the motion to suppress.‟” State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003)
(quoting State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)). The prevailing party on the
motion to suppress is afforded the “„strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.‟” Northern,
262 S.W.3d at 748 (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)); see State
v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); Odom, 928 S.W.2d at 23.

      The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect citizens against “unreasonable searches and seizures.”
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It is well settled that “the temporary detention of individuals during the stop of a vehicle
by police, even if only for a brief period and for a limited purpose, constitutes a „seizure‟
which implicates the protection of both the state and federal constitutional provisions.”
State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005). In general, warrantless searches and
seizures are presumptively unreasonable and any evidence obtained as a result of the
warrantless action is subject to suppression. State v. Richards, 286 S.W.3d 873, 878
(Tenn. 2009). However, if the state “demonstrates by a preponderance of the evidence
that the search or seizure was conducted pursuant to an exception to the warrant
requirement,” the evidence will not be suppressed. Keith, 978 S.W.2d at 865.

       The United States Supreme Court has held that law enforcement officers must
have probable cause or an “articulable reasonable suspicion” to believe that a traffic
violation has occurred when they initiate a traffic stop without a warrant. See State v.
Brotherton, 323 S.W.3d 866, 870 (Tenn. 2010) (citing Whren v. U.S., 517 U.S. 806, 116
S. Ct. 1796 (1996)). Reasonable suspicion exists when “specific and articulable facts . . .
taken together with rational inferences from those facts, reasonably warrant that
intrusion.” See id. (quoting Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968)). An officer‟s “inchoate and unparticularized suspicion or hunch” is not sufficient
reasonable suspicion. Id.

        Tennessee courts‟ application of the reasonable suspicion standard entails looking
at the totality of the circumstances “to determine whether an officer reasonably believed
that the operator of the vehicle had either committed a crime or was about to commit a
crime.” Brotherton, 323 S.W.3d at 870 (citing State v. Levitt, 73 S.W.3d 159, 172 (Tenn.
Crim. App. 2001) and State v. England, 19 S.W.3d 762, 766 (Tenn. 2000). The totality
of the circumstances includes the personal observations and rational inferences and
deductions of the trained law enforcement officer making the stop. See Terry, 392 U.S.
at 21, 88 S. Ct. 1868; State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000); State v. Watkins,
827 S.W.2d 293, 294 (Tenn. 1992). Objective standards apply, rather than the subjective
beliefs of the officer making the stop. State v. Day, 263 S.W.3d 891, 903 (Tenn. 2008);
State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996).

       The precise issue certified for our review is: “Whether the traffic stop was
supported by articulable reasonable suspicion that a crime was being committed or
probable cause that a traffic offense had occurred, thus legally justifying the initial
seizure of the defendant?” The State in its brief acknowledges that Defendant was seized
following Officer Cohen‟s activation of his blue lights in order to stop Defendant‟s
vehicle. See State v. Williams, 185 S.W.3d 311, 317-18 (Tenn. 2006).

       Defendant contends that the holdings and factual scenarios presented in the cases
of U.S. v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000); State v. Binette, 33 S.W.3d 215
                                             4
(Tenn. 2000); State v. William R. Cook, No. M2008-02562-CCA-R3-CD, 2009 WL
2461905 (Tenn. Crim. App., Aug. 12, 2009); State v. Alorra D. Puckett, No. E2002-
01959-CCA-R3-CD, 2003 WL 21638048 (Tenn. Crim. App., July 9, 2003), perm. app.
denied (Tenn., Dec. 8, 2003); State v. Carl Martin, No. W2002-00066-CCA-R3-CD,
2003 WL 57311 (Tenn. Crim. App., Jan. 2, 2003); and State v. Ann Elizabeth Martin,
E1999-01361-CCA-R3-CD, 2000 WL 1273889 (Tenn. Crim. App., Sept. 8, 2000),
demonstrate that a driver is not required to drive perfectly on the highways in order to
avoid being stopped by police and subjected to a seizure. Applying the rationale in those
cases to the facts herein, Defendant asserts that his “driving behavior on the night in
question does not establish reasonable suspicion that he was committing an offense.”

        The State responds that Officer Cohen observed Defendant fail to maintain his
vehicle “as nearly as practicable” within his lane of traffic as required by Tennessee Code
Annotated section 55-8-123(1), a violation of which is a Class C misdemeanor. The State
asserts that Officer Cohen‟s observations provided reasonable suspicion to make the stop.
Defendant asserts that this court should not undertake an analysis of whether Officer
Cohen observed a violation of Tennessee Code Annotated section 55-8-123(1) because
Officer Cohen did not testify or otherwise indicate that a violation of the traffic offense
was the basis for his stop of Defendant. Contrary to Defendant‟s assertion in his brief,
however, that “Officer Cohen did not testify, nor is there any indication in the record, that
he initiated the stop or even contemplated stopping [Defendant] for failing to drive his
vehicle as „nearly as practicable entirely within a single lane[,]‟” we note that Officer
Cohen‟s testimony consisted almost entirely of his observations of Defendant‟s vehicle
failing to maintain its lane of travel. Officer Cohen testified that he stopped Defendant‟s
vehicle because it “[d]rove over the yellow line, and then it drove onto the yellow line
and dotted white line, [and] was also weaving within its lane of travel.”

        Although Officer Cohen did not testify that he stopped Defendant‟s vehicle for a
violation of Tennessee Code Annotated section 55-8-123(1), both parties addressed the
statute in their arguments to the trial court. We also note that Officer Cohen did not
testify that he stopped Defendant‟s vehicle for suspicion of DUI. However, if the stop is
supported by probable cause or reasonable suspicion, it is constitutionally valid. See
Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (the Court held
that there is no constitutional violation if there is a valid reason for a traffic stop even if
the officer may have other motives as a pretext for the stop); see also State v. Stacey
Wayne Creekmore, No. E2008-00012-CCA-R3-CD, 2009 WL 2567771, at *5 (Tenn.
Crim. App., Knoxville, Aug. 19, 2009), perm. app. denied (Tenn., Feb. 22, 2010) (if the
officer had testified that the defendant‟s speed was a reason for the stop, “we would agree
that probable cause existed and supported the stop, regardless if she actually also
suspected a DUI.”).

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       Defendant relies upon our supreme court‟s holding in State v. Binette, 33 S.W.3d
215 (Tenn. 2000). In Binette, the issue before the court was whether the officer had
reasonable suspicion, supported by specific and articulable facts, that Binette had
committed, or was about to commit, the criminal offense of driving under the influence of
an intoxicant. Id. at 218. The court held that the evidence did not support the trial
court‟s finding that the officer had reasonable suspicion to stop the defendant because the
videotape of the encounter only showed the defendant making lateral movements within
his own lane of travel. At the suppression hearing, the officer did not testify, and the
videotape made immediately before the stop was the only evidence introduced. Id. at
219. The court reviewed the video evidence and found no evidence “of pronounced
weaving or hard swerving by Binette.” Id. The court commented that the “number of
times that a vehicle touches the center line or drifts within a lane is not dispositive of the
issue before this Court. Rather, . . . a court must consider the totality of the
circumstances in determining whether reasonable suspicion was present at the time a stop
was initiated.” Id. (emphasis added). The court also concluded that “Binette did not
violate any rules of the road during the period in which the video camera recorded his
driving.” Id.

       The State distinguishes Binette because the record in that case did not include
officer testimony. The supreme court‟s analysis was based solely on its de novo review
of the video recording. Additionally, in Binette, the video contradicted the officer‟s
recorded narrative. Here, the State argues, the video recording did not contradict Officer
Cohen‟s testimony or undermine his credibility. The State further asserts that the totality
of circumstances, including that the weather was clear, there were no other vehicles on
the road, and that it occurred in the early morning hours support the trial court‟s
conclusion that Officer Cohen had reasonable suspicion to stop Defendant‟s vehicle. We
note that the same circumstances that the State emphasizes in this case were also present
in the facts of Binette. The defendant in Binette was driving late at night, the weather
was fair, there was no other traffic, the video showed two minutes of Binette‟s driving,
and the weaving was entirely within his lane of travel and was not pronounced or
exaggerated. Id. at 218-219. Furthermore, the State‟s distinction applies only to the
standard of review. Id. at 217 (“when a court‟s findings of fact at a suppression hearing
are based solely on evidence that does not involve issues of credibility, such as the
videotape evidence . . . , the rationale underlying a more deferential standard of review is
not implicated.”).

       In the present case, the trial court apparently accredited part of the officer‟s
testimony, stating, “the weaving within the lane would not be enough by itself except that
this weaving, even within the lane, was continuous through this – through this mile, mile
and a half, and by my own observation consistent with the Officer‟s testimony.”
However, as noted above, the trial court did not make a specific finding that Defendant
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crossed any dividing lines. In fact, the court specifically found that Defendant only
touched the lines. Officer Cohen testified at the suppression hearing that he stopped
Defendant‟s vehicle because he observed Defendant “[d]r[i]ve over the yellow line, and
then it drove onto the yellow line and dotted white line, was also weaving within [his]
lane of travel.” He testified on direct examination that he “believe[d] [Defendant]
crossed over the yellow line one time. And then also drove onto it.” On cross-
examination, however, Officer Cohen testified that he was not “completely” sure that
Defendant actually crossed the dividing line. He also agreed with defense counsel that
Defendant made “wide turns within [his] lane . . . . Never leaving the pathway of the
lane.” Having reviewed the trial court‟s findings and the video evidence in this case, we
find that Defendant‟s vehicle did not cross any dividing lines. Like the defendant in
Binette, Defendant‟s weaving was not pronounced or exaggerated. Therefore, pursuant to
our supreme court‟s holding in State v. Binette, we conclude that Officer Cohen‟s
observations did not give rise to reasonable suspicion to justify a stop of Defendant‟s
vehicle.

        We recognize and distinguish two recent unpublished opinions of this court, State
v. Jeffrey D. Aaron, No. M2014-01483-CCA-R3-CD, 2015 WL 4183033, (Tenn. Crim.
App., Nashville, July 10, 2015), and State v. Linzey Danielle Smith, No. M2013-02818-
CCA-R3-CD, 2015 WL 412972, (Tenn. Crim. App., Nashville, Feb. 2, 2015), perm. app.
granted (Tenn., May 14, 2015), both authored by the author of the opinion in this case, in
which we applied our supreme court‟s analysis in State v. Brotherton, 323 S.W.3d 866
(Tenn. 2010), and concluded that “in both „probable cause‟ for arrest (or citation) cases
and in „reasonable suspicion for investigatory stop‟ cases involving Class C misdemeanor
traffic offenses, it is not required that what the officer observes be sufficient to support
beyond a reasonable doubt that a driver has violated the misdemeanor traffic offense.”
State v. Linzey Danielle Smith, 2015 WL 412972, at *8. “Rather the [relevant] inquiry is
whether [the officer‟s] observations were specific and articulable facts that support a
reasonable suspicion that Defendant committed the traffic offense.” State v. Jeffrey D.
Aaron, 2015 WL 4183033, at *4.

       The State analogizes the facts in this case to the facts in State v. Linzey Danielle
Smith. In that case, a panel of this court, relying upon our supreme court‟s opinion in
Brotherton, specifically rejected the analysis in prior cases in which the courts have
applied the conclusion in Ann Elizabeth Martin, No. 1999-01361-CCA-R3-CD, 2000 WL
1273889 (Tenn. Crim. App., Knoxville, Sept. 8, 2000), that “a momentary drift out of
lane [does not constitute] driving a vehicle outside of a single lane,” to cases where the
issue is whether “probable cause” or “reasonable suspicion” exists to justify a vehicle
stop, based upon a violation of Tennessee Code Annotated section 55-8-123(1). 2015
WL 412972, at *8. In Linzey Danielle Smith, the evidence showed that the officer
observed the defendant‟s vehicle drift toward the right shoulder of the road as it entered a
                                             7
“big swooping curve” to the left. Defendant‟s vehicle “crossed the fog line by less than
six inches, probably.” Defendant drifted again to the right two more times, almost
crossing the fog line again and then barely touching the fog line. Id. at *2. A panel of
this court concluded that even if the officer‟s observations were “clearly not enough to
support a conviction” for the traffic offense in section 55-8-123(1), the evidence was
sufficient to establish both probable cause and reasonable suspicion to justify a stop of
the defendant‟s vehicle. Id. at *8.

       Unlike the defendant in Linzey Danielle Smith, Defendant in this case did not cross
any dividing line. In State v. Jeffrey D. Aaron, the officer testified that the defendant
“was weaving within his lane of travel.” The video recording showed the vehicle
weaving one time within its lane, then touch the dividing line for the center lane, and
briefly cross over the dividing line once. Applying the analysis in Brotherton, a panel of
this court upheld the trial court‟s denial of the defendant‟s motion to suppress. Based on
the evidence that the defendant‟s vehicle “actually crossed over the line and into the
continuous turn lane,” the officer‟s observations were sufficient to establish reasonable
suspicion to justify the stop. 2015 WL 4183033, at *4. The panel in State v. Jeffrey D.
Aaron noted that “merely „touching‟ the line alone would not be sufficient to justify the
stop based upon a possible violation of T.C.A. § 55-8-123(1).” Id. at *4.

       Finally, the State agrees with the trial court‟s assessment that this case is a “close
call” and urges this court to apply the good faith exception to the exclusionary rule.
Tennessee courts have repeatedly declined to recognize an officer‟s “good faith” as an
exception to the exclusionary rule in other contexts. See, e.g., State v. Carter, 16 S.W.3d
762, 768 n. 8 (Tenn. 2000) (“[T]his Court has yet to adopt the [good faith] exception.”);
State v. Bearden, 326 S.W.3d 184, 188 (Tenn. Crim. App. 2010) (“Tennessee, however,
has not adopted this „good faith exception.”). We note that we are limited to
consideration of the question preserved. See State v. Day, 263 S.W.3d 891, n.8 (Tenn.
2008). Therefore, we decline to address the issue raised by the State of whether Officer
Cohen acted in good faith.

                                     CONCLUSION

      Based upon the foregoing, the denial of the motion to suppress is reversed and the
charges against Defendant are dismissed with prejudice.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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