            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                                 FILED
                                     AT KNOXVILLE                               June 28, 1999

                                                                              Cecil Crowson, Jr.
                                  APRIL 1999 SESSION                         Appellate C ourt
                                                                                 Clerk




STATE OF TENNESSEE,                            )
                                               )   NO. 03C01-9802-CR-00075
       Appellee,                               )
                                               )   HAMILTON COUNTY
VS.                                            )
                                               )   HON. REBECCA J. STERN,
GUY BINETTE,                                   )   JUDGE
                                               )
       Appe llant.                             )   (Certified Question of Law)




                                 DISSENTING OPINION

       I must dissent from the holding of the Court that the minor swerving of the

appe llant’s vehicle within his own lane of traffic provides a sufficient bas is for a police

stop of that ve hicle. It is tr ue tha t this Cour t has in the past upheld vehicle stops by

police where erratic d riving oc curs in the drive r’s lane o f traffic; ho weve r in all these

cases erratic “in lane” driving was extreme or accompanied by additional

circumstances warrantin g police inv estigation .        See, e.g., State v. Stuart Allen

Jenkins, C.C.A. No. 01C01-9712-CR-00590, 1998 Tenn. Crim. App. LEXIS 1304,

Putnam County (Te nn. Crim. Ap p. filed Decem ber 21, 1998 , at Nashville) (Officer

had information from motorist and dispatcher that defendant was a possible D.U.I.,

couple d with personal observation of excessive weaving in defendan t’s own lane);

State v. Geo rge W esley H arvill, Jr., C.C.A. No. 01C01-9607-CC-00300, 1997 Tenn.

Crim. App. LEXIS 1067, Sequatchie County (Tenn. Crim. App. filed october 24,

1997, at Nashville) (defend ant made overly wide turn into oncoming traffic causing

other motorist to respond by blowing horn, coupled with “riding” of center lane and

excessive weaving within defendant’s own lane); State v. Ra ndall L . McF arlin, C.C.A.
No. 01C01-9 406-PB -00202 , 1995 T enn. C rim. App . LEXIS 476, Da vidson C ounty

(Tenn. Crim. App. filed June 13, 1995, at Na shville) (In addition to excess ive

weaving in defendant’s own lane of traffic, defendant crossed the center and at time

ran into the gravel on the shoulders of the road. Defen dant also ran o ver curb in

attemp ting to exec ute a turn .)



        In the case sub judice the majority admits, and I agree, that the videotape

revea ls that while the appellant did swerve somewhat in his own lane, the weaving

was not exaggerated. Further, it does not appear that the appellant ever crossed the

center lane.



        Thus, while the appellant’s driving is not perfect, it is not so erratic that

standing alone it furnishes a sufficient basis for a police stop.1



        Recently our State Supr eme Cour t held th at even the m ost m inor traf fic

offense may serve as a pretext to stop motorists who police suspect of more serious

criminal activity, but for which evidence of the more serious crime is lac king. See,

State v. Vineyard, 958 S.W.2d 730 (Tenn. 1997). If the majority is correct, minor

flaws in driving even though they do not rise to the level of an offense may, when

observed by police, serve as the basis for an investigatory stop. Th us, it appears

that only perfect driving will assure travel on our roadways without the possibility of

police detention. How ever, common sense tells us that no driver is a perfec t driver;

we all make innocen t driving error s that, altho ugh no t traffic offenses, may not




        1
          The majority notes and I again agree that, had the arresting officer testified at the suppression
hearing, as he stated on the videotape, that the appellant was speeding and the trial court had found the
officer credible, a sufficient basis to stop the appellant would have been established. However, the officer
did not testify as to the appellant’s speed, and we are left with the appellant’s testimony that he was not
speed ing as the only evidenc e on this p oint.
subject us to a police stop.2             At a minimum when innocent driving errors are the sole

basis for the police stop I would require such errors to be exaggerated or excessive before

finding that a reasonable suspicion of criminal activity exists which warrants a stop of the

vehicle. In this case both the majority and myself agree that the appellant’s flawed driving

does not reach such an exaggerated or excessive level. For this reason I dissent and

would hold that the stop of the appellant’s vehic le was cons titutiona lly impe rmiss ible

under the circumstances presented in this record. (See F.N.1).                              Therefore all

evidence resulting from the stop should, in my opinion, be suppressed.



                                                  ______________________________
                                                  JERRY L. SMITH, JUDGE




          2
            In essence the m ajority opinion creates a “stop at will” standard for police since it is the rare
motorist indeed who can travel for several miles without occasionally varying speed unnecessarily, moving
laterally from time to time in the motorists own lane, nearing the center line or shoulder or exhibiting some
small imperfection in his or her driving.
