         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    April 9, 2013 Session

           STATE OF TENNESSEE v. BRANDON TRAE WAGSTER

                    Appeal from the Circuit Court of Fayette County
                       No. 12-CR-42 Weber McCraw, Judge


                  No. W2012-02231-CCA-R3-CD - Filed April 30, 2013


Brandon Trae Wagster (“the Defendant”) was indicted for driving under the influence and
violation of the implied consent law. He filed a motion to suppress, challenging the legality
of the stop of his vehicle. After an evidentiary hearing, the trial court granted the
Defendant’s motion and dismissed the charges against him. The State appeals. After a
thorough review of the record and the applicable law, we reverse the judgment of the trial
court and reinstate the Defendant’s charges.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and A LAN E. G LENN, JJ, joined.

Robert E. Cooper, Jr., Attorney General & Reporter; Clarence E. Lutz, Assistant Attorney
General; Mike Dunavant, District Attorney General; and Matt Hooper, Assistant District
Attorney General, for the appellant, State of Tennessee.

Robert M. Brannon, Jr., Memphis, Tennessee, for the appellee, Brandon Trae Wagster.

                                           OPINION

                            Factual and Procedural Background

       The Defendant was indicted in March 2012 for driving under the influence (“DUI”)
and violation of the implied consent law. On April 10, 2012, the Defendant filed a motion
to suppress, challenging, inter alia, the legality of the stop of his vehicle. The trial court held
an evidentiary hearing on this ground which adduced the following proof:
       Officer Jeffrey DuPriest of the Oakland Police Department (“OPD”) testified that he
was on duty during the early morning of September 17, 2011. He was “running stationary
radar” in a parking lot east of “the Ozone”1 and Dogwood Lane in Fayette County,
Tennessee. While running radar, Officer DuPriest heard “the sound of screeching tires” in
the Ozone parking lot and looked to that direction. He was not able to ascertain which
vehicle had “screech[ed]” its tires, but he observed the Defendant driving his vehicle on
Dogwood Lane traveling northbound toward Highway 64.2 Officer DuPriest was not able
to determine whether the Defendant’s vehicle had pulled out of the Ozone parking lot.
Officer DuPriest then observed the Defendant’s vehicle turn left onto Highway 64 and
“travel westbound in the eastbound emergency lane [of Highway 64] and then pull back into
the Ozone parking lot.” Officer DuPriest stated that the Defendant traveled approximately
one block in the wrong direction of traffic.

      Officer DuPriest testified that to get from Dogwood Lane, where he initially observed
the Defendant’s vehicle, to the Ozone parking lot, a vehicle should

        pull straight across the eastbound lane [of Highway 64], go into the median
        strip and then once he’s able to establish the due care to pull out into traffic,
        travel westbound [on Highway 64], go down to the next median strip, turn
        around then turn into the [Ozone] parking lot.

When the Defendant was traveling in the wrong direction, Officer DuPriest stated that he left
the parking lot in which he had been parked and “pulled into the side parking lot of [the]
Ozone to await for [the Defendant’s] vehicle to come out” of the Ozone parking lot. Once
the Defendant’s vehicle “c[a]me around,” Officer DuPriest activated his emergency lights.
Officer DuPriest testified that some other vehicles were in the Ozone parking lot and some
were traveling on Dogwood Lane at the time that he activated his emergency lights.

       After Officer DuPriest activated his emergency lights, the Defendant pulled back onto
Dogwood Lane traveling northbound. Officer DuPriest pulled behind the Defendant’s
vehicle on Dogwood Lane and followed it. Once the Defendant had turned left onto
Dogwood Lane, he pulled out onto Highway 64 and turned left, traveling westbound in the
correct lane of travel. The Defendant traveled approximately one block westbound on
Highway 64 and turned right onto Lakewood Drive, traveling northbound. He traveled for
approximately one-quarter of a mile and then “stopped in the lane of travel.” Officer
DuPriest stated that he stopped the Defendant’s vehicle for “traveling westbound in the


       1
           According to Officer DuPriest, the Ozone is a bar.
       2
          According to Officer DuPriest’s diagram drawn during the hearing, see infra p. 3, Dogwood Lane
is adjacent to the Ozone and perpendicular to Highway 64. Highway 64 is also adjacent to the Ozone.

                                                    -2-
eastbound lanes.” He stated that, at that point, he did not have any suspicion that the
Defendant was driving under the influence. Officer DuPriest stated that, when the Defendant
traveled westbound in the eastbound emergency lane on Highway 64, there was no traffic and
there was no obstruction in the roadway which would have prevented a vehicle from crossing
into the westbound lane to travel in the correct lane on Highway 64.

        The trial court asked Officer DuPriest whether the Defendant was driving on the
“emergency shoulder” or in an “actual lane of traffic.” Officer DuPriest responded that the
Defendant was traveling in the emergency lane. The trial court then asked Officer DuPriest
whether the “[emergency lane] also turn[s] into the parking lot for Ozone[.]” Officer
DuPriest stated that the emergency lane does turn into the parking lot for the Ozone but
disagreed that the “emergency lane [is] the same as the [Ozone] parking lot.” He stated,
however, that you can “get to the [Ozone] parking lot from the emergency lane.” Again, he
reiterated that the emergency lane is separate from the Ozone parking lot. The trial court
inquired into how Officer DuPriest was able to distinguish the difference between the
emergency lane and the Ozone parking lot. Officer DuPriest responded that the difference
between the two is the “type of pavement” – “the structure of the roadway and the actual
parking lot of the Ozone.”

       Lastly, Officer DuPriest testified that the roads that he had discussed during his
testimony are all public roads and that the Ozone parking lot is a public parking lot. The
State asked Officer DuPriest to draw a diagram of the Ozone, including the location of
Dogwood Lane, Highway 64, and the emergency lane that the Defendant traveled in. Officer
DuPriest complied. The State then entered the diagram as an exhibit at the hearing.

       On cross-examination, Officer DuPriest testified that he since had resigned from the
OPD.3 Defense counsel asked Officer DuPriest if he resigned voluntarily, and Officer
DuPriest stated that he did not “feel that that’s indicative of this case.” He denied that he was
terminated for some violation of the OPD rules and then agreed that it was a voluntary
resignation. He stated that he also was “post-certified in the state of Tennessee” but that he
was not employed with a police department at the time of the hearing. He again agreed that
the only reason that he stopped the Defendant’s vehicle was that it “traveled in the wrong
direction on Highway 64.” Defense counsel asked Officer DuPriest what was the distance
in mileage that the Defendant traveled in the wrong direction before he turned back into the
Ozone parking lot. Officer DuPriest stated that the Defendant traveled approximately one-
tenth of a mile in the wrong direction.

        Defense counsel asked Officer DuPriest whether he planned to issue the Defendant
a citation, and Officer DuPriest responded that it was not his “intention to issue [the

       3
           Officer DuPriest did not testify to when he resigned.

                                                     -3-
Defendant] a citation” but that he stopped him to advise him that he had violated a traffic
law. He stated that, customarily, it is in the individual officer’s discretion whether to issue
a citation. Officer DuPriest agreed that a violation of Tennessee Code Annotated section 55-
8-1254 is a crime for which there is punishment.

        Officer DuPriest stated that his patrol car was parked approximately fifteen to twenty
feet from Highway 64. Highway 64 was approximately 100 to 120 yards away from the
Ozone. He disagreed that there was no lighting on Highway 64, stating that there was
“ambient light from other businesses and things like that but as far as street lights, no.” The
ambient light was exhibited from the Ozone and from the entrance of Lakewood Drive, a
subdivision, which was approximately one block away, or one-tenth of a mile, from the
Ozone.

      At the conclusion of the hearing, the trial court granted the Defendant’s motion to
suppress, stating,

                The [c]ourt asked a couple of questions. I am somewhat familiar with
        that area.5 The [c]ourt, after hearing the testimony and specifically looking at
        the drawing [that Officer DuPriest executed during the hearing] and asking my
        questions, I don’t find that the actions of the [D]efendant to be unreasonable
        driving actions. I don’t find that it arises to a reasonable suspicion to
        necessitate the stop so I am going to grant the [m]otion to [s]uppress.

The trial court also filed a written order granting the motion and dismissing the Defendant’s
charges. The written order states, in pertinent part,

        [T]his [c]ourt finds that the Defendant’s driving did not give the officer
        reasonable suspicion and/or probable cause to effectuate a legal traffic stop in
        this matter; and thus, the motion is well taken and should be granted. The
        [c]ourt further finds that . . . all charges in this matter must be dismissed as the
        State lacks any further evidence in which to prosecute the Defendant.

Thereafter, the State filed a motion to reconsider, which the trial court denied. The State
filed a timely appeal, contending that the trial court erred in granting the Defendant’s motion
to suppress.



        4
            For the specific provisions of this code section, see infra p. 7.
        5
          The trial court’s apparent reliance upon its own knowledge of the area separate and apart from the
record in the hearing has not been raised as an issue in this appeal.

                                                        -4-
                                                Analysis

                                          Motion to Suppress

        The State contends that the trial court erred in granting the Defendant’s motion to
suppress. In reviewing the trial court’s determination on a defendant’s motion to suppress,
questions regarding the witnesses’ credibility, “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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, we will uphold the trial court’s
factual findings unless the preponderance of the evidence is otherwise. Id. However, when
the trial court has applied the law to the facts, we will conduct a de novo review. See State
v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Because the Defendant is the prevailing party,
he 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.” Odom, 928 S.W.2d at 23.

        Both the Fourth Amendment to the United States Constitution, as well as article I,
section 7 of the Tennessee Constitution protect individuals from unreasonable searches and
seizures. State v. Ingram, 331 S.W.3d 746, 754 (Tenn. 2011) (citing Mapp v. Ohio, 367 U.S.
643, 655 (1961)).6 Under both constitutions, “a warrantless search or seizure is subject to
suppression unless the State demonstrates that the search or seizure was conducted pursuant
to one of the narrowly defined exceptions to the warrant requirement.” State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55
(1971)); see also State v. Garcia, 123 S.W.3d 335, 343 (Tenn. 2003). One of these
exceptions is that police officers may stop an automobile if they have probable cause or
reasonable suspicion to believe that a traffic violation has occurred. Whren v. United States,
517 U.S. 806, 810 (1996); State v. Vineyard, 958 S.W.2d 730, 734-35 (Tenn. 1997); State
v. Watson, 354 S.W.3d 324, 329 (Tenn. Crim. App. 2011). If the officer has probable cause
to believe that a traffic violation has occurred, any seizure will be upheld even if the stop is
a pretext for the officer’s subjective motivations in making the stop. See Whren, 517 U.S.
at 813-15; Vineyard, 958 S.W.2d at 734-35. Reasonable suspicion exists when “‘specific and
articulable facts . . . taken together with rational inferences from those facts, reasonably
warrant that intrusion.’” State v. Brotherton, 323 S.W.3d 866, 870 (Tenn. 2010) (quoting
Terry v. Ohio, 392 U.S. 1, 20-21 (1968)); State v. Day, 263 S.W.3d 891, 902-903 (Tenn.


        6
           The Fourth Amendment is applicable to the states through the Fourteenth Amendment to the United
States Constitution. See Mapp, 367 U.S. at 655; Ingram, 331 S.W.3d at 754. The intent and purpose of
article I, section 7 of the Tennessee Constitution is identical with the Fourth Amendment; however, our
Supreme Court has noted previously that Tennessee’s search and seizure case law has developed
independently from, and extends greater protection than, federal law. See State v. Richards, 286 S.W.3d 873,
877-78 (Tenn. 2009).

                                                    -5-
2008). Whether reasonable suspicion exists is based upon an objective standard, and courts
must look to the totality of the circumstances. See Terry, 392 U.S. at 21-22; Brotherton, 323
S.W.3d at 870 (citing State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000); State v. Levitt, 73
S.W.3d 159, 172 (Tenn. Crim. App. 2001)).

        The State first contends that the trial court applied an incorrect standard in granting
the Defendant’s motion to suppress because it stated that the Defendant’s driving was not
“unreasonable.” We disagree with the State. As previously discussed, police officers can
stop an automobile if they have probable cause or reasonable suspicion to believe that a
traffic violation has occurred. See Whren, 517 U.S. at 810 (1996); Vineyard, 958 S.W.2d
at 734-35; Watson, 354 S.W.3d at 329. In the trial court’s oral findings, the trial court
ultimately held that the Defendant’s driving did not give Officer DuPriest “reasonable
suspicion” to conduct a traffic stop of the Defendant’s vehicle. The trial court reaffirmed its
application of the correct standard in its written findings when it held “that the Defendant’s
driving did not give the officer reasonable suspicion and/or probable cause to effectuate a
legal traffic stop in this matter.” Accordingly, this issue is without merit.

        Next, the State asserts that the trial court erred in granting the Defendant’s motion to
suppress.7 In this case, the trial court heard the testimony of only one witness, Officer
DuPriest. The facts are not disputed, and, upon our review of the record, the trial court did
not make any credibility findings, either expressly or implicitly, with respect to Officer
DuPriest’s testimony. As a result, the trial court’s conclusions that the Defendant’s driving
does not “arise[]to a reasonable suspicion to necessitate the stop” and that the “Defendant’s
driving did not give [Officer DuPriest] reasonable suspicion and/or probable cause to
effectuate a legal traffic stop in this matter” are conclusions of law derived from an
application of the law to the undisputed facts of this case. Therefore, in determining whether
the trial court erred in granting the Defendant’s motion to suppress, we apply de novo review.
See, e.g., State v. Daniel, 12 S.W.3d 420, 423-24 (Tenn. 2000) (“The trial court heard the
testimony of only one witness. The facts are not disputed. As a result, the trial court’s
conclusion that a seizure did not occur is a conclusion of law derived from an application of
the law to the undisputed facts of this case. Therefore, in determining whether the trial court
and the Court of Criminal Appeals erred in denying the defendant’s motion to suppress, we
apply de novo review.”)

        In this case, the Defendant clearly was seized when Officer DuPriest initiated his
emergency lights and pulled behind the Defendant’s vehicle on Dogwood Lane to conduct
a traffic stop of his vehicle. See Ingram, 331 S.W.2d at 756; Day, 263 S.W.3d at 901-902.


        7
         Although the Defendant contends that the State only raised on appeal whether the trial court applied
an incorrect legal standard, we disagree. A reading of the State’s appellate brief indicates that it also
challenges the trial court’s ruling on the motion to suppress.

                                                    -6-
Consequently, we must determine whether Officer DuPriest had probable cause or reasonable
suspicion that a traffic violation had occurred at the time he initiated his emergency lights.
See Vineyard, 958 S.W.2d at 734; see also Whren, 517 U.S. at 810.

        Officer DuPriest testified that during the early morning of September 17, 2011, he
observed the Defendant drive his vehicle in the emergency lane on Highway 64 in the wrong
direction of traffic. Specifically, he stated that he observed the Defendant “ travel westbound
in the eastbound emergency lane [of Highway 64]” for approximately one block, or one-tenth
of a mile, before turning into the Ozone parking lot. Although the eastbound emergency lane
is adjacent to the Ozone parking lot, Officer DuPriest testified that the emergency lane is
separate from the Ozone parking lot and that he can distinguish the difference between the
two based on the type of pavement – “the structure of the roadway and the actual parking lot
of the Ozone.” Moreover, he observed no traffic and no obstruction in the roadway which
would have prevented the Defendant from traveling in the westbound lane of Highway 64
to the Ozone parking lot, instead of traveling westbound in the eastbound emergency lane in
the wrong direction of traffic. After watching the Defendant travel “in the wrong direction
on Highway 64,” Officer DuPriest initiated a stop of the Defendant’s vehicle to advise him
that he had violated a traffic law.

       Based on this testimony, we find that Officer DuPriest at least had reasonable
suspicion based on specific and articulable facts that a violation of Tennessee Code
Annotated section 55-8-125 (2004) had occurred. This provision provides as follows:

              Whenever any highway has been divided into two (2) roadways by
       leaving an intervening space or by a physical barrier or clearly indicated
       dividing section so constructed as to impede vehicular traffic, every vehicle
       shall be driven only upon the right-hand roadway and no vehicle shall be
       driven over, across, or within any dividing space, barrier or section, except
       through an opening in the physical barrier or dividing section or space or at a
       cross-over or intersection established by public authority.

Tenn. Code Ann. § 55-8-125. Officer DuPriest’s testimony established that Highway 64 is
a highway divided into two roadways by an intervening space. Moreover, the proof
established that the Defendant violated this provision because he failed to drive in the “right-
hand roadway” of Highway 64. Thus, the trial court erred in granting the Defendant’s
motion to suppress.




                                              -7-
                                     CONCLUSION

      For these reasons, the judgment of the trial court granting the Defendant’s motion to
suppress is reversed, and the Defendant’s charges for DUI and violation of the implied
consent law are reinstated. Accordingly, this case is remanded to the trial court for further
proceedings consistent with this opinion.



                                                   _________________________
                                                   JEFFREY S. BIVINS, JUDGE




                                             -8-
