                    IN THE SUPREME COURT OF TENNESSEE
                               AT NASHVILLE
                         May 28, 2003 Session Heard at Cookeville

           STATE OF TENNESSEE v. GONZALO MORAN GARCIA

                  Appeal by Permission from the Court of Criminal Appeals
                            Criminal Court for Davidson County
                           No. 99-C-2220     Steve Dozier, Judge



                     No. M2000-01760-SC-R11-CD - Filed October 1, 2003



JANICE M. HOLDER, J., dissenting.



        The standard for reviewing a trial court’s findings of fact in a suppression hearing is governed
by our opinion in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). In Odom, we held that a trial court’s
findings of fact will be upheld unless the evidence preponderates otherwise. See 928 S.W.2d at 23.
The majority purports to apply this standard in reviewing the trial court’s conclusion that Officer
Kohl’s investigatory stop was based on reasonable suspicion. However, the majority opinion’s
reasonable suspicion analysis suggests differently.

        Instead of giving deference to the trial court’s findings as Odom requires, the majority
independently viewed the videotape, reviewed the transcript of the testimony of Officer Kohl, and
then substituted its own findings for those of the trial court. In so doing, the majority appears to be
applying the de novo standard that was established in State v. Binette, 33 S.W.3d 215 (Tenn. 2000),
and applied in this case by the Court of Criminal Appeals. While disavowing the Court of Criminal
Appeals’ use of this standard, the majority proceeds to subtly question the trial court’s findings and
ultimately concludes that Officer Kohl did not have reasonable suspicion to stop Garcia as a matter
of law.

        In Binette, the majority relied upon the “deposition rule” articulated in workers’
compensation cases and adopted a new de novo standard to review evidence that the majority
believed was limited to videotaped evidence. See 33 S.W.3d at 217. The rationale behind the
holding in Binette was that appellate courts are just as capable as trial courts to review such evidence
and draw their own conclusions when no issues of credibility exist. See id. I disagreed with this
rationale and with the standard adopted in Binette. See id. at 220-22 (Holder, J. dissenting). I
disagree with applying such a standard to what is clearly a combination of live-witness and videotape
evidence.
        Applying a standard other than that which this Court espoused in Odom is not only
unnecessary, it is dangerous. As Binette and the present case show, a standard of review that fails
to afford a presumption of correctness to the trial court allows the majority’s interpretation of the
events to ultimately trump the police officer’s recollection of those events and the trial court’s
findings of fact. In my opinion, the videotape hardly presents a crystal clear view of the events
captured. The picture is dark, indistinct, and mainly consists of diffused light. The images on the
screen are further obscured by shadows created by the overhead streetlights. As such, I question how
well the videotape depicts what Officer Kohl actually saw. Moreover, I continue to adhere to my
opinion that trial courts are in a better position than appellate courts to make findings of fact,
irrespective of the form of the evidence, and that the standard applied by the majority in this case
essentially establishes a “last in line is right” rule. By substituting its own interpretation of the
events for the trial court’s findings, the majority exceeded its proper role.

         I would hold that an application of the Odom standard establishes that the officer in this case
had reasonable suspicion to stop Garcia. Reasonable suspicion is determined by considering the
totality of the circumstances surrounding the stop. See Binette, 33 S.W.3d at 218; see also State v.
Bridges, 963 S.W.2d 487, 492 (Tenn. 1997). In the present case, Officer Kohl stopped Garcia on
Interstate 24 at approximately 11:00 p.m. Officer Kohl testified at the suppression hearing that she
observed Garcia weave multiple times before she decided to stop him. The trial court found Officer
Kohl’s testimony credible and found that the videotape supported her testimony. The trial court also
stated that the videotape showed Garcia “noticeably swerve[]” on at least three occasions. In
addition, at trial, Officer Kohl testified that she noticed that Garcia was swerving “in a continual
manner.” I would conclude that the evidence does not preponderate against the trial court’s findings.
In Binette, the defendant had to negotiate intersections, stop lights, and winding roads. Garcia, on
the other hand, was driving on a straight interstate. Moreover, considerable traffic was on the
interstate around Garcia, which “amplified the situation” according to the trial court. Binette was
on a road with very little traffic. Viewed under a totality of the circumstances standard, I would hold
that the noticeable and continual weaving in this case constituted reasonable suspicion to stop Garcia
under Binette.

        Furthermore, I would hold that Officer Kohl’s investigative detention of Garcia was
reasonable. Traffic stops are investigative stops. See State v. Troxell, 78 S.W.3d 866, 871 (Tenn.
2002). Consequently, a police officer’s actions in conducting such a stop cannot exceed the scope
of the circumstances that justified the stop. Id. A reasonable traffic stop can become unreasonable
if the “‘time, manner or scope of the investigation exceeds the proper parameters.’” Id. (quoting
United States v. Childs, 256 F.3d 559, 564 (7th Cir. 2001)).

        In assessing whether a detention is excessive in length, a court must determine if “the police
diligently pursued a means of investigation that was likely to confirm or dispel their suspicions
quickly.” State v. Simpson, 968 S.W.2d 776, 783 (Tenn. 1998). In this case, less than fifteen
minutes elapsed from the time Officer Kohl stopped Garcia to the time she handed Garcia his
driver’s license, the vehicle registration, and the warning citation and told him that the stop was
complete. Accordingly, the length of the investigation was not excessive. See Weaver v. Shadoan,


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340 F.3d 398, 408-09 (6th Cir. 2003) (concluding that a ten to fifteen minute detention was not
unlawful); United States v. Wellman, 185 F.3d 651, 656-57 (6th Cir. 1999) (indicating that a fifteen
to twenty minute detention was not unlawful).

         A detention also may be unreasonable if the investigation’s scope exceeds the purpose of the
traffic stop. Once the purpose of the initial stop is accomplished, an officer may not detain the
motorist further unless the stop yields the necessary reasonable suspicion to justify extending the
detention. State v. England, 19 S.W.3d 762, 767 (Tenn. 2000). “[I]nconsistencies in information
given to an officer during a traffic stop may give rise to reasonable suspicion of criminal activity.”
United States v. Smith, 263 F.3d 571, 592 (6th Cir. 2001). Officer Kohl’s questions concerning
Garcia’s destination followed logically from her earlier inquiries regarding his state of intoxication
or fatigue and did not exceed the scope of the stop. However, once Officer Kohl determined that
Garcia was tired but not intoxicated, the investigation should have ended unless the officer had
reasonable suspicion to justify extending the stop. Officer Kohl testified that she was satisfied that
Garcia was not intoxicated after they discussed his destination and he handed over his driver’s
license. Nevertheless, Garcia’s evasiveness regarding his destination along with his implausible
statement that he had left Los Angeles the previous day gave Officer Kohl reasonable suspicion to
continue her investigation into the ownership of the vehicle. Garcia’s inconsistent answers to Officer
Kohl’s subsequent questions along with his travel plans and the litter that was strewn throughout the
inside of the vehicle provided Officer Kohl with reasonable suspicion to extend the detention further.
Based on these circumstances, I would hold that Officer Kohl’s investigative detention of Garcia was
reasonable.

       Because I would conclude that the initial stop and continued detention of Garcia were based
upon reasonable suspicion, I disagree with the majority’s holding that Garcia’s constitutional rights
were violated and that Garcia’s consent to search was an exploitation of a prior unlawful seizure.
Therefore, I must respectfully dissent.



                                                       ___________________________________
                                                       JANICE M. HOLDER, JUSTICE




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