        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              February 10, 2015 Session

               STATE OF TENNESSEE v. JEFFERY D. AARON

                Appeal from the Circuit Court for Williamson County
                     No. ICR017709      Michael Binkley, Judge


                 No. M2014-01483-CCA-R3-CD – Filed July 10, 2015


Defendant, Jeffery D. Aaron, was indicted by the Williamson County Grand Jury for
driving under the influence of an intoxicant (DUI), and driving while his blood alcohol
concentration was .08 percent or more (DUI per se). Prior to trial, the trial court granted
Defendant‟s motion to suppress evidence obtained as a result of the state trooper‟s stop of
Defendant. The State appeals. After a thorough review of the record, relying upon our
supreme court‟s decision in State v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), we
conclude that the trooper had reasonable suspicion, based on specific and articulable
facts, that Defendant had committed or was about to commit the Class C misdemeanor
offense set forth in Tennessee Code Annotated section 55-8-123(1). Accordingly, the
judgment of the trial court is reversed.

  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 ROBERT L.
HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Kim R. Helper, District Attorney General; and Carlin Hess, Assistant District Attorney
General, for the appellant, the State of Tennessee.

Mark L. Puryear III, Franklin, Tennessee, for the appellee, Jeffery D. Aaron.

                                       OPINION

Motion to suppress

      State trooper Charles Achinger testified that that on July 7, 2013, at 12:21 a.m., he
observed a vehicle “make a choppy, hesitant turn to turn right” at the intersection of
Moores Lane and Carothers Parkway in Williamson County. Trooper Achinger testified,
“it appeared that the person was turning and then maybe let go of the steering wheel and
grabbed it again to turn some more. And did that a couple of times. And that‟s what
drew my attention to the vehicle.” Trooper Achinger testified that the driver of the
vehicle “reached across with his right hand and flipped [him] off” as he drove by.
Trooper Achinger testified that he was “100 percent positive” that the driver raised his
middle finger at him. Trooper Achinger waited until the traffic light turned green, made
a u-turn at the intersection, and “attempted to catch up to the vehicle to observe more
driving actions.”

       In his testimony while the dashboard video recording from his patrol car was
being played, Trooper Achinger described his observations as follows:

        When I turned around there was a vehicle in between us. As I went
        around the first curve, I observed – it is going to be the second vehicle
        will be the black Ford Explorer.

        It is going to be the second vehicle. As they come around the corner,
        you will see that the Ford Explorer is shading to the left by the
        continuous left turn lane. When we get up a little further and I zoom the
        camera in, the vehicle then drifts over to the right. And then right before
        we go over – there‟s a hill crest there with a flashing light – he drifts
        back over to the left. When I came back over that hill crest, I couldn‟t
        see the vehicle very well, so I shade[d] my patrol vehicle to the left
        because there is a car in between us. And that‟s when I observed the
        vehicle drift over into the continuous turn lane without using a signal.

        Trooper Achinger observed the vehicle for “about a mile. It wasn‟t very long at
all.” He testified that the driver “was weaving within his lane of travel.” Trooper
Achinger acknowledged that he did not make the decision to stop the vehicle after he
observed the “choppy turn” and the driver‟s offensive hand gesture. He activated his
blue lights and initiated the traffic stop after he observed the vehicle weaving within its
lane of travel and drift into the turn lane. Trooper Achinger testified that his reasons for
stopping the vehicle included “the choppy turn, the fact that he did flip me off, and then
the weaving within the roadway and then when he drifted over into the continuous turn
lane.” On cross-examination, Trooper Achinger agreed that the weaving he observed was
within the vehicle‟s lane of travel until the vehicle crossed into the turning lane. He
testified that he did not observe Defendant speeding or violating any other traffic laws.

        The dashboard video recording begins with Trooper Achinger‟s vehicle stopped at
a red light. Our observation of the exhibit reveals the following. Trooper Achinger made
a u-turn and began driving in the same direction as Defendant. Another vehicle was
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driving between Trooper Achinger and Defendant. Defendant‟s vehicle can be seen
weaving one time within his lane, and Defendant‟s vehicle appeared to have touched the
dividing line for the center turning lane. A short distance later, Defendant‟s vehicle is
seen briefly crossing once over the dividing line. Trooper Achinger then activated his
blue lights, passed the car immediately in front of him, and stopped Defendant‟s vehicle.

      At the conclusion of the hearing, the trial court made the following findings of fact
and conclusions of law:

        Thank you. All right, Gentlemen. I know at least on a professional
        basis, Sergeant Achinger – and I find him to be incredibly candid, very
        honest and call[s] it like he sees it. I have an absolute respect for
        Sergeant Achinger, always have, always will.

        Now, what I have got to look at here are these points that Sergeant
        Achinger testified to; that is the choppy turn, the flipping of the bird;
        weaving inside of his lane and then drifting into the turn lane, towards
        the turn lane. You know, the most compelling evidence to me is the
        video. I mean, it speaks for itself. And that is probably the very best
        evidence I have in front of me. These cases are difficult, you know,
        these weaving cases inside the travel lane and some outside, some
        touching, some not and it‟s close, it is always close.

        All right, with that said, you know, I have got to make a decision here.
        I‟m going to make it. I just find by a preponderance of the evidence that
        these incidences do not rise to the level of reasonable suspicion to turn
        on the blue lights, pull this man over and then conduct whatever
        happened after that.

        Again, I know they are close. I absolutely respect Sergeant Achinger,
        has nothing to do with his abilities and his job that he does, which is
        excellent as far as I‟m concerned. But you know, I‟ve got to be
        objective. I‟ve got to make the call based on the totality of the
        circumstances. And my call is that I do not find that this raises to a
        preponderance of the evidence that there was reasonable suspicion under
        the circumstances to pull this gentleman over.




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Analysis

      The State contends that the trial court erred by granting Defendant‟s motion to
suppress. The State asserts that based upon specific and articulable facts, Trooper
Achinger had reasonable suspicion that Defendant had committed a criminal offense.

       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.”
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. 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 and
articulable facts, that a criminal offense has been, is being, or is about to be committed.”
Id.

       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. U.S., 517 U.S. 690, 695,
116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)). However, an officer‟s “inchoate and
unparticularized suspicion or hunch” is not sufficient reasonable suspicion. State v. Day,

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263 S.W.3d 891, 907 (Tenn. 2008) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (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 U.S. v. Sokolow, 490
U.S. 1, 7 (1989)).

       Tennessee Code Annotated section 55-8-123(a), a violation of which is a Class C
misdemeanor offense, requires that “[a] vehicle shall be driven as nearly as practicable
entirely within a single lane.” Defendant relies upon the holding in State v. Ann
Elizabeth Martin, No. E1999-01361-CCA-R3-CD, 2000 WL 1273889 (Tenn. Crim. App.
Sept. 8, 2000), in which a panel of this court reversed the defendant‟s conviction for DUI
upon concluding that the officer who stopped the defendant did not have “reasonable
suspicion” of commission of a criminal offense to justify the stop. Id. at *1. The panel
observed that “it is not unusual for a vehicle to enter a turn lane and then return to a travel
lane without making a turn. Nor do we think that a vehicle that briefly crosses the solid
white line on the shoulder is committing a traffic violation.” Id.

        However, in State v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), our supreme court
determined that a state trooper had reasonable suspicion, based upon specific and
articulable facts, to stop the defendant‟s vehicle for a violation of the Class C
misdemeanor offense in Tennessee Code Annotated section 55-9-402(b), which mandates
that a motor vehicle must be equipped on the rear of the vehicle with two red tail lamps
and two red stoplights, and the red stoplight “shall not project a glaring or dazzling light.”
In Brotherton, the trooper observed a “bright light” shining from the passenger side
taillight area of the defendant‟s vehicle. Citing Illinois v. Wardlow, 528 U.S. 119, 126
(1996), the Brotherton court held that “[a] showing of reasonable suspicion does not
require an actual violation of the law because „Terry accepts the risk that officers may
stop innocent people‟ to investigate further.‟” 323 S.W.3d at 871.

        Our supreme court in Brotherton clearly emphasized that in both
        “probable cause” for arrest (or citation) cases and in “reasonable
        suspicion for investigatory stop” cases involving Class C misdemeanor
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        traffic offenses, it is not required that what the officer observes must be
        enough evidence to support beyond a reasonable doubt that a driver has
        violated the Class C misdemeanor offense. Thus, for “probable cause”
        or “reasonable suspicion” analysis of a stop based upon a possible
        violation of T.C.A. § 55-8-123(1), the conclusion in Ann Elizabeth
        Martin that “a momentary drift out of lane [does not constitute] driving a
        vehicle outside of a single lane” is misplaced. Id. at *6. To the extent
        this holding in Ann Elizabeth Martin can be construed to apply to cases
        where the issue is whether “probable cause” or “reasonable suspicion”
        exists to justify a vehicle stop, based upon a violation of T.C.A. § 55-8-
        123(1), the unpublished opinion should not be followed.

State v. Linzey Danielle Smith, M2013-02818-CCA-R3-CD, 2015 WL 412972, at *8
(Tenn. Crim. App. Feb. 2, 2015), perm. app. granted (Tenn. May 14, 2015).

        In the case sub judice, the trial court heard Trooper Achinger‟s testimony about his
personal observations and reviewed the dashboard video recording. The trial court
obviously accredited Trooper Achinger‟s testimony, finding that Trooper Achinger was
“incredibly candid, very honest and call[s] it like he sees it.” The trial court also found
that “[t]he most compelling evidence” was the video recording of Defendant‟s driving.
The trial court did not make a specific finding that Defendant did or did not cross the
yellow line. However, this court is equally as capable as the trial court of reviewing the
video evidence. The video clearly shows that Defendant‟s vehicle weaved once within
his lane of traffic, and Defendant‟s vehicle appeared to touch the yellow line dividing
Defendant‟s lane from the center turning lane. Defendant‟s vehicle then weaved again to
the left and clearly crossed once over the dividing yellow line.

       Under our supreme court‟s analysis in Brotherton, the proper inquiry is not
whether there is evidence beyond a reasonable doubt that Defendant violated T.C.A. §
55-8-123(1). Rather the inquiry is whether Trooper Achinger‟s observations were
specific and articulable facts that support a reasonable suspicion that Defendant
committed the traffic offense. Based on the evidence, Trooper Achinger‟s observations
were sufficient to establish reasonable suspicion to justify a stop of Defendant for a
violation of Tennessee Code Annotated section 55-8-123(1), even if the evidence turns
out not to be legally sufficient to support a conviction for the traffic offense. We
emphasize that this court‟s ruling in this case relies solely upon the evidence that
Defendant‟s vehicle actually crossed over the line and into the continuous turn lane.
Merely “touching” the line alone would not be sufficient to justify the stop based upon
possible violation of T.C.A. § 55-8-123(1).


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        The State argues that the additional evidence that Trooper Achinger also observed
Defendant make a “choppy” turn and make an offensive hand gesture to Trooper
Achinger, “considered together [with the video evidence of Defendant touching and
crossing the center line], are sufficient to call the defendant‟s sobriety into question.”
The State cites State v. Watson, 354 S.W.3d 324 (Tenn. Crim. App. 2011), in which this
court held that the officer‟s testimony that he observed the defendant in one-half of a mile
cross the fog line twice and cross the center line once established reasonable suspicion to
justify an investigatory stop. 354 S.W.3d at 331.

        We conclude that Defendant‟s offensive hand gesture did not provide grounds to
justify Trooper Achinger‟s stop of Defendant. Although Trooper Achinger testified that
Defendant‟s “choppy” turn and offensive hand gesture alone did not give him reason to
stop Defendant‟s vehicle, the trial court found that “the flipping of the bird is one of
several [facts] that [Trooper Achinger] relied upon and I understand that. If [Defendant]
were charged with flipping a bird, he would be guilty beyond a reasonable doubt of
stupidity more than anything.” The trial court noted, however, that the gesture was “free
speech.” Whether the hand gesture is “free speech” is not really relevant in this case.
The hand gesture was not a “specific and articulable fact” upon which reasonable
suspicion of any crime could be based in this case.

        In conclusion, having reviewed the testimony of Trooper Achinger and the video
recording in this case, we conclude that the evidence preponderates against the trial
court‟s finding that Trooper Achinger did not have reasonable suspicion sufficient to
justify a stop of Defendant. Accordingly, we reverse the judgment of the trial court and
remand for further proceedings in the trial court.


                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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