        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  March 12, 2014 Session

            STATE OF TENNESSEE v. JACQUELINE M. HIYAMA

             Direct Appeal from the Circuit Court for Williamson County
                   No. II-CR047192     James G. Martin, III, Judge




                  No. M2013-01838-CCA-R3-CD - Filed June 17, 2014


The appellant, Jacqueline M. Hiyama, was indicted on alternative counts of driving under the
influence (DUI) pursuant to Tennessee Code Annotated section 55-10-401(a)(1) and (a)(2).
She filed a pretrial motion to suppress all evidence obtained as a result of her arrest, asserting
that the arresting officer did not have reasonable suspicion to stop her vehicle. The trial court
denied the appellant’s motion. The appellant pled guilty to the indicted offense reserving a
certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)
concerning whether the stop of the appellant’s vehicle by law enforcement was lawful. After
review, we conclude that the trial court did not err in denying the appellant’s motion to
suppress and affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which JERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

David M. Rich, Nashville, Tennessee, for the appellant, Jacqueline M. Hiyama.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Kim
R. Helper, District Attorney General; and Carlin Hess, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                           OPINION

                                   I. Factual Background

       On April 8, 2013, a Williamson County Grand Jury returned an indictment charging
the appellant on count one with driving under the influence (DUI) and on count two with
DUI, per se. Thereafter, the appellant filed a motion to suppress the evidence gathered from
the stop, asserting that the officer did not have reasonable suspicion to stop the appellant.

        Trooper Charles Achinger testified at the suppression hearing that he had been a state
trooper for nine years and had been trained in DUI detection and investigation. At 3:19 a.m.
on October 28, 2012, Trooper Achinger was traveling north on Interstate 65 in a four-lane
section of the highway. He was driving in the second lane to the right. The only other traffic
was a vehicle that was in the same lane, approximately one-half mile ahead of him. The
vehicle appeared to be drifting or swerving. Trooper Achinger increased his speed, and when
he got closer, he observed the vehicle swerve to the left and briefly touch the white dotted
line before correcting into its own lane of travel. The vehicle’s tires did not completely cross
the dotted line. As the vehicle traveled past Concord Road on a right-bending curve, it
crossed over the right dotted line into the adjacent lane, corrected, again touched the dotted
line, then again corrected into its lane of travel. Trooper Achinger estimated that the vehicle
drifted to the right for approximately seven seconds. Finally, on a larger, left-bending curve,
the vehicle “cut the curve.” Trooper Achinger explained that both of the vehicle’s left tires
completely crossed over the dotted line into the adjacent left lane for a brief period before
correcting into its lane of travel. Trooper Achinger initiated the traffic stop because of the
vehicle’s failure to maintain its lane of travel. Trooper Achinger said that the vehicle pulled
over approximately one and one-half miles after he activated his blue lights.

        Trooper Achinger said that he approached the vehicle and identified the appellant as
the driver. Two passengers were traveling with her. Trooper Achinger smelled alcohol and
observed that both passengers were highly intoxicated. He asked the appellant to step out
of the vehicle so that he could locate the source of the odor. Following the appellant’s exit,
he discerned that the smell of alcohol was coming from her, and he asked her to perform field
sobriety tests. The appellant performed poorly, and Trooper Achinger placed her under
arrest.

       Trooper Achinger said that his police cruiser was equipped with a video camera,
which began recording when he activated his blue lights. The State introduced the video
recording into evidence. Trooper Achinger said that the video was accurate but that it did
not show his initial observations of the vehicle’s drifting outside the lane prior to activation
of the blue lights.

        On cross-examination, Trooper Achinger acknowledged that at the preliminary
hearing, he did not mention seeing the vehicle weaving or drifting outside the lane prior to
the activation of the video. At the time the recording began, he was driving approximately
one hundred miles per hour. He asserted that the appellant was not speeding and that he
stopped her for failing to maintain her lane of travel. Trooper Achinger said that the

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appellant drove “fairly straight” on the “straight-a-ways.” He asserted that the appellant’s
failure to maintain her lane of travel carried with it the “high possibility of an accident
happening.” Nevertheless, he acknowledged that the only other vehicle was “very, very far
ahead of [the appellant].”

        At the conclusion of the proof, the appellant argued that the video showed that her
driving was not erratic and did not establish reasonable suspicion for the traffic stop. The
appellant further argued that the trial court should consider only the video in order to make
its ruling, citing State v. Binette, 33 S.W.3d 215 (Tenn. 2000). The appellant argued that
Trooper Achinger’s testimony at the suppression hearing was inconsistent with the video and
with his testimony at the preliminary hearing. The State countered that the instant case was
factually distinguishable from Binette and that if the trial court accredited Trooper
Achinger’s testimony, it would find that he had reasonable suspicion to stop the vehicle.

        The trial court agreed with the State. It noted that the video was “simply evidence that
the [c]ourt finds to be credible based on the testimony of Trooper Achinger.” The court
accepted Trooper Achinger’s testimony that his initial observations of the appellant’s vehicle
drifting within its lane occurred before the video began recording and that he observed the
vehicle cross lanes on two occasions. The trial court thus found that Trooper Achinger had
reasonable suspicion for the stop based on articulable facts evidenced by his “personal
observations as confirmed by the video” and denied the appellant’s motion.

       On July 23, 2013, the appellant entered a plea of guilty, properly reserving the
following certified question for appeal pursuant to Rule 37(b)(2)(i) of the Tennessee Rules
of Criminal Procedure:

              Was the stop and detention of [the appellant] lawful under the
              4th and 14th Amendments to the U.S. Constitution and Art. 1
              Sect. 7 of the Tennessee State Constitution, by the State of
              Tennessee demonstrating that either a reasonable suspicion or
              probable cause existed that a crime was being committed by [the
              appellant] sufficient to justify the warrantless stop, search, and
              seizure of [the appellant]?

                                         II. Analysis

       The appellant, citing State v. Binette, 33 S.W.3d 215 (Tenn. 2000), argues that the
video evidence contradicts Trooper Achinger’s testimony and shows that he did not have
reasonable suspicion to stop her. The appellant contends, therefore, that this court should



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utilize a de novo standard of review without a presumption of correctness to determine
whether Trooper Achinger had reasonable suspicion to effectuate the stop. We disagree.

        Our supreme court has cautioned that Binette only applies “when a court’s findings
of fact at a suppression hearing are based solely on evidence that does not involve issues of
credibility.” 33 S.W. 3d at 217 (emphasis added). Because trial “courts are uniquely
positioned to observe the demeanor and conduct of witnesses,” the deferential standard of
review described in State v. Odom, 928 S.W.2d 18 (Tenn. 1996), is appropriate when the
credibility of a witness is at issue. Binette, 33 S.W.3d at 217. In Binette, the only evidence
presented by the State was a dashboard recording of the defendant’s driving; the State did
not present testimony from any witnesses. Id. at 216. Therefore, the de novo standard was
appropriate. Id. at 217.

        In this case, the trial court relied upon more than just the video recording in making
its factual findings and denying the appellant’s motion. Trooper Achinger testified not only
about the events preserved by the video recording but also about his initial observations of
the appellant, which were not captured by the dashboard camera recording. Moreover, the
trial court specifically accredited Trooper Achinger’s testimony in its ruling. The trooper’s
testimony created issues of credibility for the trial court and placed this case outside the
purview of Binette. Therefore, we review the trial court’s suppression decision under the
deferential Odom standard. See State v. Garcia, 123 S.W.3d 335, 342-43 (Tenn. 2003).

        The Odom standard entrusts trial judges with resolving issues of witness credibility,
weighing and valuing evidence, and resolving conflicts in the evidence. 928 S.W.2d at 23.
Therefore, “a trial court’s findings of fact in a suppression hearing will be upheld unless the
evidence preponderates otherwise.” Id. The “prevailing party in the trial court is entitled to
the strongest legitimate view of the evidence adduced at the suppression hearing as well as
all reasonable and legitimate inferences that may be drawn from that evidence” State v.
David Dwayne Bell, __ S.W.3d __, No. E2011-01241-SC-R11-CD, 2014 WL 644502, at *3
(Tenn. at Knoxville, Feb. 20, 2014). However, appellate courts will review questions of law
and the trial court’s application of the law to the facts de novo without according any
presumption of correctness to the trial court’s conclusions. State v. Crutcher, 989 S.W.2d
295, 299 (Tenn. 1999).

       The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect citizens against “unreasonable searches and seizures.” 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

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requirement,” the evidence will not be suppressed. State v. Keith, 978 S.W.2d 861, 865
(Tenn. 1998). One of the exceptions is met when a law enforcement officer temporarily
seizes a citizen if the officer “has a reasonable suspicion, based on specific an articulable
facts, that a criminal offense has been, is being, or is about to be committed.” Id. Therefore,
as stated in the certified question, the issue here is whether Trooper Achinger had reasonable
suspicion that the appellant was committing or had committed a crime.

       While impossible to precisely define, “reasonable suspicion” has been recognized as
“‘common sense, nontechnical conceptions’” dealing “‘with the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians
act.’” Keith, 978 S.W.2d at 867 (quoting Ornelas v. United States, 517 U.S. 690, 699
(1996)). However, an officer’s “inchoate and unparticularized suspicion or hunch” is not
sufficient reasonable suspicion. State v. Day, 263 S.W.3d 891, 907 (Tenn. 2008) (quoting
Terry v. Ohio, 392 U.S. 1, 27 (1968)) (internal quotations omitted).

        Analyzing “whether reasonable suspicion existed in a particular traffic stop is a fact-
intensive and objective analysis.” Garcia, 123 S.W.3d at 344. In determining whether an
officer had reasonable suspicion, “a court must consider the totality of the circumstances.”
Id. “‘[R]easonable suspicion can be established with information that is different in quantity
or content than that required to establish probable cause, but also in the sense that reasonable
suspicion can arise from information that is less reliable than that required to show probable
cause.’” Keith, 978 S.W.2d at 866 (emphasis omitted) (quoting State v. Pulley, 863 S.W.2d
29, 32 (Tenn. 1993)). Reasonable suspicion does not require “‘proof of wrongdoing,’” but
it does require some “‘minimal level of objective justification for making the stop.’” Id. at
867 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

       In this case, the record does not preponderate against the trial court’s factual findings
regarding reasonable suspicion. Trooper Achinger testified that he first saw the appellant’s
vehicle drifting within its own lane, that he increased his speed to take a closer look, and that
he activated his cruiser’s dashboard camera. After he reduced the distance between his
cruiser and the appellant’s vehicle, he saw the appellant fail to maintain her lane of travel on
two occasions, first drifting into the lane to its right, then to the left. The trial court found
that the appellant’s vehicle was “either on or across the lane demarcation line on two
occasions for a significant period of time.”

        The trial court not only accredited Trooper Achinger’s testimony but also reviewed
the dashboard video recording. It found that the trooper’s “personal observations [were]
confirmed by the video” and that this evidence supported a basis for the stop. We agree with
the trial court that the video evidence does not contradict Trooper Achinger’s testimony that
he had reasonable suspicion to believe that the appellant was violating Tennessee Code

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Annotated section 55-8-123, which requires that “[a] vehicle shall be driven as nearly as
practicable entirely within a single lane.”

                                    III. Conclusion

      Based upon our review, we affirm the judgment of the trial court.


                                                 _________________________________
                                                 NORMA McGEE OGLE, JUDGE




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