        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                    June 24, 2003 Session

                  STATE OF TENNESSEE v. KEVIN D. GUFFEY

                Direct Appeal from the Criminal Court for Hamilton County
                           No. 237294     Rebecca Stern, Judge



                                No. E2002-02527-CCA-R3-CD
                                     November 19, 2003

The appellant, Kevin D. Guffey, pled guilty in the Hamilton County Criminal Court to driving under
the influence (DUI), a Class A misdemeanor. The trial court sentenced the appellant to eleven
months and twenty-nine days in the county workhouse, to be suspended after serving forty-eight
hours, and imposed a fine in the amount of three hundred sixty dollars ($360). The trial court also
suspended the appellant’s driver’s license for one year and ordered the appellant to attend “DUI
school.” Pursuant to the plea agreement, the appellant reserved the right to appeal a certified
question of law challenging the trial court’s denial of his motion to suppress. Upon review of the
record and the parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID H. WELLES, J., joined.

Bryan H. Hoss, Lee Davis, and David W. Wallace, Chattanooga, Tennessee, for the appellant, Kevin
D. Guffey.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William H. Cox, District Attorney General; and Mary Sullivan Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION
                                    I. Factual Background

        At the suppression hearing, Soddy-Daisy Police Officer Jerry Workman testified that in the
early morning hours of January 1, 2001, he was on “DUI patrol.” He testified that he parked his
patrol car on the shoulder of the northbound lane of Highway 27, approximately one mile from the
Morrison Springs Road exit. Officer Workman related that shortly after midnight, “a vehicle in the
far right lane, close to the [shoulder] where I was [parked], almost hit my patrol car.” Officer
Workman testified that the vehicle proceeded north and he “started taking off after it.” Officer
Workman explained,
             This particular car crossed over into the shoulder of the road again,
             half of the car did. Blue lights, siren was activated. The vehicle
             failed to stop. I radioed in. . . . [T]he other cars that were working
             this DUI program came and several officers was at the end of the exit
             ramp and blocked the car in on Morrison Springs Road.

        On cross-examination, Officer Workman acknowledged that the area where he had parked
on the side of the road was “very dark,” and his patrol car was not visible to oncoming traffic. The
officer further conceded that the shoulder of the road at that location was approximately “a patrol
car width wide.” However, Officer Workman reiterated that the appellant’s vehicle almost struck
his patrol car, crossed over the solid line onto the shoulder in front of Officer Workman’s patrol car,
and failed to stop when Officer Workman activated his blue lights and siren.

       Based upon the foregoing, the trial court denied the appellant’s motion to suppress, stating,
              From the testimony of the officer, here is how I heard the facts.
              [Officer Workman] was sitting over in the dark, off on the shoulder,
              and the [appellant] came by, crossed over the shoulder line. [Officer
              Workman] saw [the appellant cross over the shoulder] two more
              times before [reaching] the exit ramp. The way I took the proof was
              at least he saw it one more time almost immediately and then
              activated his blue lights. . . . I find there is reasonable and articulable
              suspicion for [Officer Workman] to activate his blue lights and I find
              that’s when the stop occurred . . . . Motion to suppress is overruled.

        Upon the trial court’s denial of his motion to suppress, the appellant pled guilty to DUI.
Tenn. Code Ann. § 55-10-401 (1998). Thereafter, the trial court sentenced the appellant to eleven
months and twenty-nine days in the county workhouse, to be suspended after service of forty-eight
hours, and imposed a fine of three hundred sixty dollars ($360). The trial court also suspended the
appellant’s driver’s license for one year and ordered the appellant to attend “DUI school.” Pursuant
to the plea agreement, the appellant reserved the right to appeal a certified question of law
challenging the trial court’s denial of his motion to suppress. See Tenn. R. Crim. P. 37(b)(2)(i). On
appeal, the appellant contends that “there was no reasonable or articulable suspicion to stop the
[appellant’s] car.”

                                            II. Analysis

       The trial court’s findings of fact in a suppression hearing will be upheld on appeal unless the
evidence preponderates against those findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
               Questions of 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. The party prevailing in


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               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.
Id. However, the application of the law to the trial court’s findings of fact is a question of law
subject to de novo review. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        Both the Fourth Amendment to the United States Constitution and Article 1, section 7 of the
Tennessee Constitution prohibit unreasonable searches and seizures by law enforcement officers.
The purpose of the Fourth Amendment and Article 1, section 7 is to “‘safeguard the privacy and
security of individuals against arbitrary invasions of government officials.’” State v. Munn, 56
S.W.3d 486, 494 (Tenn. 2001) (quoting State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997)); see
also State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997). Under both constitutions, “‘a warrantless
search or seizure is presumed unreasonable, and evidence discovered as a result thereof 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. Binette, 33 S.W.3d
215, 218 (Tenn. 2000) (quoting Yeargan, 958 S.W.2d at 629); see also Coolidge v. New Hampshire,
403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971).

        One such exception to the warrant requirement exists when a law enforcement officer
conducts an investigatory stop based upon a reasonable suspicion supported by specific and
articulable facts that a criminal offense has been or is about to be committed. Terry v. Ohio, 392
U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); see also State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998).
Our supreme court has held that “upon turning on the blue lights of a vehicle, a police officer has
clearly initiated a stop and has seized the subject of the stop with in the meaning of the Fourth
Amendment of the Federal Constitution and Article I, section 7 of the Tennessee Constitution.”
Binette, 33 S.W.3d at 218 (citing State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993)). Thus, in order
for the investigatory stop of the appellant’s vehicle to have been constitutionally valid, at the time
Officer Workman activated his patrol car’s blues lights, the officer must have had a reasonable
suspicion, supported by specific and articulable facts, that a criminal offense had been or was about
to be committed. Id. When evaluating whether a police officer’s reasonable suspicion is supported
by specific and articulable facts, a court must consider the totality of the circumstances surrounding
the stop. Watkins, 827 S.W.2d at 294.

        On appeal, the appellant contends that at the time Officer Workman activated the blue lights,
“there was no reasonable or articulable suspicion to stop the [appellant’s] car.” We disagree. As
previously noted, Officer Workman testified at the suppression hearing that he was parked on the
shoulder of Highway 27 when “a vehicle in the far right lane, close to the [shoulder] where I was
setting [sic], almost hit my patrol car.” Officer Workman further testified,
                 The [vehicle] proceeded north. As I started taking off after it, I kept
                 it in sight because there was one other car on the roadway. This
                 particular car crossed over into the shoulder of the road again, half of
                 the car did. Blue lights, siren was activated.



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        Our supreme court has previously observed that “‘[t]he number of times that a vehicle
touches the center line or drifts within a lane is not dispositive’ of whether reasonable suspicion
existed to validate a traffic stop. Rather, . . . a court must consider the totality of the circumstances
in determining whether reasonable suspicion was present at the time a stop was initiated.” State v.
Garcia, __ S.W.3d __ (Tenn. 2003), No. M2000-01760-SC-R11-CD, 2003 Tenn. LEXIS 856, at
**24-25 (Nashville, Oct. 1, 2003) (citing Binette, 33 S.W.3d at 219). Moreover, this court has
refused to find that an officer had reasonable suspicion to stop a driver whose driving was found not
to be erratic or improper and which had not caused a hazard to other vehicles. State v. Smith, 21
S.W.3d 251, 258 (Tenn. Crim. App. 1999). However, in the instant case, Officer Workman testified
that prior to the activation of the blue lights, he observed the appellant’s vehicle nearly strike his
patrol car and then cross “halfway” onto the shoulder of the highway. Thus, the appellant’s driving
was both erratic and dangerous, nearly causing an accident. Based upon these facts, we conclude
that Officer Workman was justified in stopping the appellant’s vehicle. The trial court did not err
in denying the appellant’s motion to suppress.

                                           III. Conclusion

        Accordingly, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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