        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   July 23, 2014 Session

       STATE OF TENNESSEE v. WILLIAM WHITLOW DAVIS, JR.

                   Appeal from the Criminal Court for Knox County
                       No. 95235    John F. Dugger, Jr., Judge


                No. E2013-02073-CCA-R3-CD - Filed December 8, 2014


The defendant, William Whitlow Davis, Jr., pleaded guilty to first offense driving under the
influence of an intoxicant with a blood alcohol level of .08 percent or more and reserved as
a certified question the propriety of the vehicle stop leading to his arrest. Determining that
the evidence does not preponderate against the trial court’s findings in its order denying the
motion to suppress, we affirm the judgment of the trial court.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER, J., and T IMOTHY L. E ASTER, S P. J., joined.

Donald A. Bosch and Ann C. Short, Knoxville, Tennessee, for the appellant, William
Whitlow Davis, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Sarah Keith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              The Knox County Criminal Court grand jury charged the defendant with
alternative counts of driving under the influence of an intoxicant (“DUI”) and driving with
a blood alcohol concentration of .08 percent or more (“DUI per se”), as well as failure to
drive within a single lane of traffic. On December 11, 2012, the defendant filed a motion to
suppress evidence of his intoxication, contending that the traffic stop which led to his arrest
constituted an illegal seizure.

              At the August 12, 2013 evidentiary hearing on the motion to suppress, Knox
County Sheriff’s Department Officer Jerry Massey testified that, on October 23, 2009, he
received a report from dispatch to be on the lookout (“BOLO”) for “a green BMW” whose
driver “had a loaded handgun and was under the influence” following a domestic altercation.
After ascertaining that the driver, later identified as the defendant, resided on Keller Bend
Road, Officer Massey proceeded to the intersection of Keller Bend and Northshore Drive,
and he parked his cruiser in a parking lot at that intersection. Approximately 25 minutes after
receiving the BOLO, Officer Massey saw the defendant drive by on Keller Bend, a two-lane
road, heading southbound. Officer Massey began to follow the defendant, and he testified
that he witnessed the defendant cross the center double yellow lines “a couple of times,
several times” before he initiated his video recording equipment. Officer Massey also opined
that the defendant was “traveling in excess of the 25 miles an hour posted speed limit” based
on his pacing of the defendant.

              At 2:28:22 a.m., Officer Massey turned on his cruiser’s video recorder. The
video recording reveals that Officer Massey followed the defendant’s vehicle for
approximately 33 seconds before activating his blue lights to stop the defendant. The video
recording shows that, before the emergency equipment is activated, the defendant’s left tire
touched the center line once at approximately 2:28:41, and at 2:28:53, the defendant’s left
tires crossed over the double yellow lines. Officer Massey activated his blue lights two
seconds later, and the defendant stopped his vehicle shortly thereafter.

                On cross-examination, Officer Massey acknowledged that he found no weapon
when he stopped the defendant. Officer Massey also conceded that Keller Bend is a curvy
road “without shoulders” which “drops off into dirt, gravel or woods.” Officer Massey stated
that only “the left portion” of the defendant’s vehicle crossed the double yellow lines and that
there was no oncoming traffic at that time.

               At the conclusion of the hearing, the trial court concluded that the defendant’s
crossing of the double yellow lines gave Officer Massey “reasonable and articulable facts
that it was a violation, enough for a . . . traffic stop, certainly, and for a ticket on violation
of the rules of the road.” Although the trial court could not find clear and convincing
evidence that the defendant was speeding, the court determined that the defendant had
“clearly” violated Tennessee Code Annotated sections 55-8-115 and 55-8-120.

               Following the trial court’s denial of a motion to suppress, the defendant
pleaded guilty to DUI per se, and the remaining charges were dismissed by agreement. The
defendant also reserved, with the consent of the State and the trial court, a certified question
of law that is dispositive of the case:

               In the early morning hours of October 23, 2009, Knox County

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              Sheriff’s Deputy Massey observed a vehicle driven by the
              defendant traveling on Keller Bend Road in Knox County.
              Deputy Massey effected a seizure of the defendant by activating
              his emergency lights, in response to which the defendant
              stopped his vehicle. Deputy Massey subsequently arrested the
              defendant and took him into custody for the offense of DUI.
              Did the trial court correctly conclude that the state carried its
              burden to show that the traffic stop of the defendant was
              justified by reasonable suspicion or probable cause that a
              criminal offense had been or was about to be committed, based
              on the manner in which the defendant was operating his vehicle
              on Keller Bend Road[?]

Discerning that this question was properly certified pursuant to Tennessee Rule of Criminal
Procedure 37(b), we will examine the trial court’s ruling on the motion to suppress.

                When reviewing a trial court’s findings of fact and conclusions of law on a
motion to suppress evidence, we are guided by the standard of review set forth in State v.
Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court’s findings of fact in
a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id. at
23. When the trial court does not set forth its findings of fact upon the record of the
proceedings, however, the appellate court must decide where the preponderance of the
evidence lies. Fields v. State, 40 S.W.3d 450, 457 n.5 (Tenn. 2001). As in all cases on
appeal, “[t]he prevailing party in the trial court is afforded the ‘strongest legitimate view of
the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence.’” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978
S.W.2d 861, 864 (Tenn. 1998)). We review the trial court’s conclusions of law under a de
novo standard without according any presumption of correctness to those conclusions. See,
e.g., State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299
(Tenn. 1999).

              Because stopping an automobile without a warrant and detaining its occupants
unquestionably constitutes a seizure, Delaware v. Prouse, 440 U.S. 648, 653 (1979), the
State in the present situation had the burden of demonstrating the applicability of an
exception to the warrant requirement, see, e.g., State v. Cox, 171 S.W.3d 174, 179 (Tenn.
2005) (temporary detention of an individual during a traffic stop constitutes seizure that
implicates the protection of both the state and federal constitutions); Keith, 978 S.W.2d at
865. The authority of a police officer to stop a citizen’s vehicle is circumscribed by
constitutional constraints. Police officers are constitutionally permitted to conduct a brief
investigatory stop supported by specific and articulable facts leading to a reasonable

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suspicion that a criminal offense has been or is about to be committed. Terry v. Ohio, 392
U.S. 1, 20-23 (1968); State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000). Whether reasonable
suspicion existed in a particular case is a fact-intensive, but objective, analysis. State v.
Garcia, 123 S.W.3d 335, 344 (Tenn. 2003). The likelihood of criminal activity that is
required for reasonable suspicion is not as great as that required for probable cause and is
“considerably less” than would be needed to satisfy a preponderance of the evidence
standard. United States v. Sokolow, 490 U.S. 1, 7 (1989). A court must consider the totality
of the circumstances in evaluating whether a police officer’s reasonable suspicion is
supported by specific and articulable facts. State v. Hord, 106 S.W.3d 68, 71 (Tenn. Crim.
App. 2002). The totality of the circumstances embraces considerations of the public interest
served by the seizure, the nature and scope of the intrusion, and the objective facts on which
the law enforcement officer relied in light of his experience. See State v. Pulley, 863 S.W.2d
29, 34 (Tenn. 1993). The objective facts on which an officer relies may include his or her
own observations, information obtained from other officers or agencies, offenders’ patterns
of operation, and information from informants. State v. Watkins, 827 S.W.2d 293, 294
(Tenn. 1992).

                 On appeal, the defendant argues that his driving imperfections did not rise to
the level of affording reasonable suspicion to justify Officer Massey’s stop. We disagree.
This court has previously held that a defendant’s crossing of the double yellow lines on a
single occasion is sufficient to provide “probable cause to initiate a traffic stop under
Tennessee Code Annotated sections 55-8-121 or 55-8-123.” State v. Watson, 354 S.W.3d
324, 331 (Tenn. Crim. App. 2011); see also State v. Carlie D. Schoenthal, No. E2010-01312-
CCA-R3-CD, slip op. at 4-5 (Tenn. Crim. App., Knoxville, Apr. 27, 2011) (holding that the
defendant’s “crossing of the double yellow lines and briefly driving on the wrong side of the
road amounted to more than simply poor driving technique” and provided officer with
reasonable suspicion to stop defendant); State v. Harold Russell Gregory, No. M2002-01461-
CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Nashville, July 29, 2003), perm. app. denied
(Tenn. Dec. 15, 2003) (holding that “once the defendant crossed the double yellow line . .
. [the officer] had the right to stop him”). That the trial court in the instant case relied on
statutory violations other than those relied on by the court in Watson is of no consequence;
all four statutes effectively proscribe driving on the wrong side of the road. Compare T.C.A.
§ 55-8-115(a) (“Upon all roadways of sufficient width, a vehicle shall be driven upon the
right half of the roadway, . . . .”) and § 55-8-120(a)(1) (“No vehicle shall at any time be
driven to the left side of the roadway under the following conditions: . . . [w]hen approaching
the crest of a grade or upon a curve in the highway where the driver’s view is obstructed
within three hundred feet . . . or such distance as to create a hazard in the event another
vehicle might approach from the opposite direction”) with T.C.A. § 55-8-121 (“The
department of transportation is authorized to determine those portions of any highway where
. . . driving to the left of the roadway would be especially hazardous and may by appropriate

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signs or markings on the roadway indicate the beginning and end of those zones.”) and § 55-
8-123(1) (“Whenever any roadway has been divided into two (2) or more clearly marked
lanes for traffic, the following rules, in addition to all others consistent with this section, shall
apply: . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and
shall not be moved from that lane until the driver has first ascertained that the movement can
be made with safety”).

                In the instant case, Officer Massey observed the defendant’s vehicle’s left tires
briefly touch the double yellow lines and, a few seconds later, Officer Massey observed the
left tires cross the double yellow lines into the lane of oncoming travel. The video recording
from the officer’s dashboard camera confirmed his testimony. Based on these facts, case law
supports a finding of not just reasonable suspicion, as found by the trial court, but probable
cause to stop the defendant’s vehicle. See Watson, 354 S.W.3d at 331. Under either
standard, the stop of the defendant’s vehicle was proper, and we affirm the trial court’s denial
of the motion to suppress.

               Accordingly, the judgment of the trial court is affirmed.


                                                       _________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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