        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 16, 2014 Session

           STATE OF TENNESSEE v. LINZEY DANIELLE SMITH

                 Appeal from the Circuit Court for Williamson County
                   No. IICR077410      James G. Martin, III, Judge




                No. M2013-02818-CCA-R3-CD - Filed February 2, 2015


Defendant, Linzey Danielle Smith, entered a plea of guilty to the offense of driving while her
blood or breath alcohol concentration was 0.08% or more (DUI) in violation of T.C.A. § 55-
10-401(2), but explicitly reserved the right to appeal a certified question of law pursuant to
Tenn. R. Crim. P. 37(b)(2)(A). The certified question of law limits this court to the
following narrow issue: whether probable cause that Defendant had committed the Class C
misdemeanor offense described in T.C.A. § 55-8-123(1) (a driver must maintain a vehicle
entirely within a single lane “as nearly as practicable”) authorized a stop of Defendant’s
vehicle by a state trooper or, alternatively, whether 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 T.C.A. § 55-8-123(1). Based upon the General
Assembly’s classification as a criminal offense the failure of a driver to maintain her vehicle
totally within a single lane of traffic “as nearly as practicable” and guidance from our
supreme court’s decision in State v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), we affirm the
judgment of the trial court.

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

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which A LAN E. G LENN, J.,
joined. N ORMA M CG EE O GLE, J., filed a dissenting opinion.

Patrick Newsom, Nashville, Tennessee, for the appellant, Linzey Danielle Smith.

Herbert H. Slatery, III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

Background

       Our review of the appellate record shows that Defendant properly reserved a certified
question of law for appeal following her negotiated plea agreement to plead guilty to driving
with a breath or blood alcohol concentration of 0.08% or more, commonly referred to as DUI
per se. See Tenn. R. Crim. P. 37(b)(2)(A); State v. Day, 263 S.W.3d 891, 898-99 (Tenn.
2010) (citing State v. Preston, 759 S.W.2d 647 (Tenn. 1988) and State v. Pendergrass, 937
S.W.2d 834 (Tenn. 1996)).

       The certified question of law states:

               Whether the stop of Defendant’s vehicle by Trooper Charles C.
        Achinger of [the] Tennessee Highway Patrol on December 6, 2012, violated
        Defendant’s rights granted pursuant to the Fourth Amendment to the U.S.
        Constitution and Article I, Section 7 of the Tennessee Constitution and
        whether any evidence, statements and blood tests obtained as a result of said
        stop should be suppressed as the fruits of an unconstitutional seizure, due
        to the fact that there was no probable cause that a traffic violation [had]
        been committed under [T.C.A.] § 55-8-123(1), and there was no reasonable
        suspicion based on the totality of the circumstances, where Defendant was
        observed driving on a winding road and sloping portion of a roadway for a
        distance of approximately 2.5 miles.

T.C.A. § 55-8-123(1) provides as follows:

        55-8-123. Driving on roadways laned for traffic.

        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:

               (1)    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;

(italicized emphasis added)



                                               -2-
The General Assembly has criminalized a violation of T.C.A. § 55-8-123(1) as a Class C
misdemeanor. T.C.A. § 55-8-103. In this case, the Class C misdemeanor is punishable by
imprisonment of not greater than thirty (30) days or a fine not to exceed fifty dollars
($50.00), or both. T.C.A. § 40-35-111(e)(3). We note at the outset that this case does not
address the issue of whether Defendant’s driving which was observed by the trooper
provided probable cause or reasonable suspicion that Defendant was driving under the
influence of intoxicants in violation of T.C.A. § 55-10-401, even though that is the offense
to which Defendant pled guilty as a result of the stop.

       After she was indicted on two alternative theory counts of DUI, Defendant filed a
“Motion to Suppress and/or Dismiss Due to Illegal Stop.” Defendant alleged that the facts
showed she had been observed crossing the fog line once for a short distance while driving
northbound on Interstate 65 in Williamson County. Defendant asserted that the trooper did
not have reasonable suspicion or probable cause that Defendant was committing a criminal
offense to justify a warrantless seizure by the trooper. The State filed a trial court brief in
opposition to Defendant’s suppression motion. In it, the State distinguished the appellate
decisions relied upon by Defendant, cited several cases it asserted supported the
constitutionality of the stop, and in fact argued that the facts supported a finding that the
trooper had reasonable suspicion based upon specific and articulable facts that Defendant
was committing the criminal offense of DUI. As noted below, this last assertion has been
abandoned by the State. The State also accurately set forth in its trial court brief the precise
legal quandary that must be resolved in this case:

        [T]he issue of driving behavior consistent with the crossing over the fog
        and/or center lines and its basis for conducting an investigatory stop, in and
        of itself, is one of much contention. On one hand, Tennessee Code
        Annotated § 55-8-123 requires motorists to drive within their lanes of travel
        “as nearly as practicable” at all times. On the other hand, a driver who
        drifts over line markings in the roadway may indicate the possibility of an
        impaired mental status. Thus, an investigatory stop in line-crossing cases
        can either be based upon probable cause of a traffic violation, namely Tenn.
        Code Ann. § 55-8-123, or reasonable suspicion of the criminal activity of
        driving under the influence. The problem that the State and Defendants
        face comes from the outpouring of appellate decisions that seem to
        contradict one another in their application of Fourth Amendment
        jurisprudence.

       Trooper Charles Achinger was the only witness who testified at the suppression
hearing. An audio-visual DVD of Defendant’s vehicle made while Trooper Achinger was
following it was shown to the trial court and made an exhibit. Upon direct examination by

                                              -3-
the State, Trooper Achinger testified that he had been employed by the Tennessee Highway
Patrol for almost ten years. He had been involved in over three-hundred DUI investigations
and received additional training in DUI detection and enforcement.

        Trooper Achinger testified that he was working the midnight shift when he came in
contact with Defendant on December 6, 2012. He was driving northbound on Interstate 65
a short time before 3:00 a.m., and Defendant’s vehicle was also traveling northbound less
than one-fourth mile in front of Trooper Achinger. Both vehicles were traveling in the far
right lane of traffic. Trooper Achinger observed Defendant’s vehicle drift to the right toward
the shoulder of the road as it entered a “big swooping curve” to the left. Defendant’s vehicle
“crossed the fog line by less than six inches, probably.” Defendant corrected the path of her
vehicle and returned it entirely within its lane of travel, but drifted back to the right two more
times. The first of these two additional “drifts” resulted in Defendant’s vehicle going
“almost . . . all the way over the fog line again.” On the second additional “drift,”
Defendant’s vehicle “went back over and just barely touched the fog line again.” Trooper
Achinger testified that the distance traveled by Defendant during the time period just
described was between 0.4 and 0.5 of a mile. After this, Defendant’s vehicle “drove fine”
with no further moving violations before Trooper Achinger initiated the stop after Defendant
exited the interstate a little more than two miles past where she had crossed the fog line.

         Trooper Achinger acknowledged that although Defendant touched the fog line three
times, she only crossed over the fog line one time. Defendant’s vehicle never changed lanes
prior to exiting Interstate 65, and the vehicle’s left tires never crossed the “dotted” white lines
to its left. According to an answer provided to a specific question asked by the State during
direct examination, Trooper Achinger could not recall Defendant’s vehicle ever “weave”
within its own lane. Although Trooper Achinger’s camera in his vehicle was turned on when
Defendant’s vehicle crossed the fog line in the left curve, that was not caught on the
recording because the camera was focused straight ahead and Trooper Achinger’s vehicle
had not proceeded into the curve enough. Trooper Achinger testified that he stopped
Defendant’s vehicle because she was in violation of T.C.A. § 55-8-123(1).

       On cross-examination, Trooper Achinger acknowledged his opinion that Defendant
did not commit a traffic violation by merely touching the fog line. Trooper Achinger
admitted that Defendant’s driving did not pose a threat to the safety of any other vehicles
while he observed her, and her driving was “not necessarily erratic.” Trooper Achinger also
acknowledged that Defendant provided proper signals to exit Interstate 65 and to turn onto
Old Hickory Boulevard just before she was stopped. He also noted that Defendant was
driving at the posted speed limit of 70 miles per hour.




                                                -4-
        In closing arguments, Defendant asserted that there were not sufficient facts to justify
a warrantless seizure of Defendant based upon various cases cited in her motion to suppress.
In conclusion, Defendant’s counsel aptly noted, “And frankly, [based on the proof], there’s
a lot of people that came to court today that probably could have been pulled over because
of that going outside the lane on a sharp curve.”

        The State implicitly waived its argument that reasonable suspicion, based upon
specific and articulable facts, existed that Defendant was committing the offense of DUI.
However, the State summarized its argument in support of denial of the motion to suppress
as follows:

        In the state’s mind it’s more of a probable cause and objective standard,
        whether or not Trooper Achinger had probable cause that this defendant
        was committing a violation of [T.C.A. § ] 55-8-123[(1)] . . . . But like I said
        earlier, I believe on behalf of the state that this is a probable cause case.
        The defendant was violating [T.C.A. §] 55-8-123[(1)].

       Upon denying the motion to suppress, the trial court made the following pertinent
findings of fact and conclusions of law:

        THE COURT:             Thank you. Well, let me thank both lawyers for a
                               good presentation. The facts are fairly straightforward
                               that on December the 6th , 2012 at 2:57 in the morning,
                               Trooper Achinger was traveling north on I-65. He
                               had just passed mile marker seventy-one. At that
                               point, and I think this is important, [Defendant], to the
                               Court’s decision, at that point, we’ve got a four lane
                               highway. The four lane interstate is designed to
                               accommodate traffic that’s moving at seventy miles an
                               hour. He then notices [Defendant’s] vehicle that’s
                               ahead of him, and he’s about a quarter of a mile or so
                               behind her vehicle. They enter this curve that’s
                               depicted in the video, and it’s clear to the Court that
                               the camera is completely off target. I mean the
                               camera pans out to the right. The vehicles are moving
                               to the left. So the case really, in the Court’s mind,
                               turns on the credibility of Trooper Achinger. What he
                               testified to was that while it’s not capable of being
                               seen by the camera, from his vantage point as the
                               driver of his vehicle, he was able to see that as

                                              -5-
[Defendant] rounded that curve to the left, her vehicle
drifted to the right to the point where her tires were
across the fog line on the right. He then continued to
follow her vehicle, and as the video was played for the
Court, again, it is very obvious to the Court that
around 2:53:56 [Defendant’s] vehicle was in fact
traveling dead on the line. She then corrected back to
the left, and then her vehicle drifted back to the right
again and her tires touched the white line. Counsel for
[Defendant] is arguing strenuously that the Court
needs to take into consideration the fact that this was
a sharp curve to the left and then the early curve to the
right, and that [Defendant] may not have negotiated
the curve to the left very well, but then she negotiated
two curves thereafter. If this were a two lane road
under the circumstances, the Court would be much
more inclined to agree with [Defendant]. But we’re
not talking about a two lane road. We’re talking about
a four lane interstate that’s designed, as I mentioned,
to accommodate vehicles that are going seventy miles
an hour. Drivers are expected to be able to maintain
their lane of travel at seventy mile an hour speeds on
a four lane interstate. So the curves in that road are
not so radical that it’s difficult for a driver to maintain
the lane of travel. Based upon the credibility the
Court finds with Trooper Achinger, the Court believes
that there is, in this case, probable cause to believe
and to conclude that [Defendant] failed to maintain
her lane of travel, and therefore Trooper Achinger had
a reasonable basis for stopping her vehicle; and he did
make the stop. Now, the fact that [Defendant] drove
for roughly two miles after Trooper Achinger
observed her driving behavior, in the Court’s mind
doesn’t change the fact that she had failed to maintain
her travel - or lane of travel prior to that. He made the
stop, and thereafter I don’t know what happened. It’s
not in evidence. But the Court finds that there was
probable cause based upon his observation of a
misdemeanor, in this case a violation of 55-8-123.
Thank you all.

                -6-
Analysis

       Our supreme court has stated,

                The Fourth Amendment to the United States Constitution proscribes
        “unreasonable searches and seizures” and provides that “no Warrants shall
        issue, but upon probable cause . . . particularly describing . . . the persons
        . . . to be seized.” Likewise, Article I, Section 7 of the Tennessee
        Constitution states that “the people shall be secure in their persons . . . from
        unreasonable searches and seizures.” Because traffic stops constitute
        seizures entitling a vehicle’s occupants to the full protections of the United
        States and Tennessee Constitutions, Whren v. United States, 517 U.S. 806,
        809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Pulley, 863 S.W.2d
        29, 30 (Tenn. 1993), the authorities must act reasonably when initiating a
        traffic stop.

               The United States Supreme Court has interpreted this requirement
        to mean that the authorities must have probable cause or an “articulable and
        reasonable suspicion” to believe that a traffic violation has occurred when
        they initiate a traffic stop. Whren v. United States, 517 U.S. at 810, 116
        S.Ct. 1769; Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59
        L.Ed.2d 660 (1979); accord State v. Vineyard, 958 S.W.2d 730, 736 (Tenn.
        1997).

State v. Brotherton, 323 S.W.3d 866, 870 (Tenn. 2010).

       There are three levels of police-citizen interactions: (1) a full-scale arrest, which must
be supported by probable cause in order to be valid; (2) a brief investigatory detention, which
must be supported by a reasonable suspicion, based upon specific and articulable facts, of
criminal wrong-doing; and (3) a brief “encounter” which requires no objective justification.
State v. Day, 263 S.W.3d 891, 901 (Tenn. 2008).

       Furthermore, it is well settled that

        “Probable cause”—the higher standard necessary to make a full-scale
        arrest—means more than bare suspicion: “Probable cause exists where ‘the
        facts and circumstances within their [the officers’] knowledge, and of which
        they had reasonably trustworthy information, [are] sufficient in themselves
        to warrant a man of reasonable caution in the belief that’ an offense has

                                               -7-
        been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-
        76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States,
        267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). “This determination
        depends upon ‘whether at that moment the facts and circumstances within
        [the officers’] knowledge and of which they had reasonably trustworthy
        information were sufficient to warrant a prudent man in believing that the
        petitioner had committed or was committing an offense.’” Goines v. State,
        572 S.W.2d 644, 647 (Tenn. 1978) (quoting Beck v. Ohio, 379 U.S. 89, 91,
        85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). “In dealing with probable cause,
        . . . we deal with probabilities. These are not technical; they are the factual
        and practical considerations of everyday life on which reasonable and
        prudent men, not legal technicians, act.” Brinegar, 338 U.S. at 175, 69
        S.Ct. 1302.

Id. at 902-03.

       We will first review the cases relied upon by Defendant in her appellate brief to
support her argument that the motion to suppress all evidence obtained after the stop should
have been granted. She has divided her argument into two sections: (1) Trooper Achinger
did not have probable cause that Defendant had committed the crime of failure to maintain
her vehicle within a single lane and (2) Trooper Achinger did not have reasonable suspicion,
based upon specific and articulable facts, to believe Defendant had committed or was
committing the criminal offense of failure to maintain her vehicle within a single lane. As
probable cause is the higher standard, Day, 263 S.W.3d at 901-02, if we determine that
Trooper Achinger had probable cause to believe Defendant had committed the criminal
offense of failure to maintain her vehicle within a single lane, then Trooper Achinger
obviously had “reasonable suspicion” to stop Defendant.

       In State v. Ann Elizabeth Martin, No. E1999-01361-CCA-R3-CD, 2000 WL 1273889
(Tenn. Crim. App. Sept. 8, 2000) (an opinion authored by the author of the opinion in the
case sub judice) 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. 2000 WL 1273889 at *1. The
pertinent facts in Ann Elizabeth Martin are remarkably similar to the facts in Defendant’s
case, and were summarized as follows:

        In the early morning hours of April 13, 1997, Ann Elizabeth Martin was
        operating a 1996 GMC van on Lee Highway in Chattanooga. Lee Highway
        is a divided highway with two lanes of travel in either direction. Officer
        Robert Starnes of the Hamilton County Sheriff’s Department was in the

                                              -8-
        vicinity at the time, and he testified that he observed Defendant’s vehicle
        at 3:14 AM just south of the junction of Lee Highway and Highway 153.
        The vehicle was proceeding northbound on Lee Highway, and Starnes
        watched Defendant’s vehicle move from the right-side travel lane to a
        merge lane on the far right-hand side of the road. After Defendant’s vehicle
        was in the merge lane the tires on the right side of the road crossed over the
        solid white line onto the paved portion of the road over the traveled portion
        of the roadway which attracted my attention to the vehicle. The vehicle
        then came back into the merge lane to get onto 153 and weaved over or
        crossed over into the slow lane, which would be the outer most lane of Lee
        Highway on the northbound side. Then at this time I activated my video
        camera inside my patrol unit and proceeded to record the rest of the
        information as far as the vehicle’s driving.

Id.

       The panel in Ann Elizabeth Martin provided the following analysis in reaching its
decision that the stop of the defendant’s vehicle was unconstitutional:

        We also note that the suspicious activity observed by Officer Starnes does
        not constitute, in and of itself, a traffic violation. Motorists are liable to
        change their mind when driving, and thus 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. Our laws provide that
        “[w]henever any roadway has been divided into two (2) or more lanes for
        traffic. . . . A vehicle shall be driven as nearly as practicable entirely within
        a single lane,” Tenn. Code Ann. § 55-8-123(a) (1997) (emphasis added),
        but we do not think that a momentary drift out of a lane constitutes driving
        a vehicle outside of a single lane. See United States v. Freeman, 209 F.3d
        464, 466 (6th Cir. 2000) (weaving into emergency lane one time for a few
        feet not a violation of § 55-8-123).

Id. at *6 (emphasis added, except the word “driving”)

       As applicable to the issue in the case sub judice, the precise holding of Ann Elizabeth
Martin which most supports Defendant’s argument is the conclusion that a momentary drift
out of a lane of traffic does not constitute “driving” a vehicle outside of a single lane.
However, the more recent published opinion of State v. Watson, 354 S.W.3d 324 (Tenn.
Crim. App. 2011) calls into question this analysis, even though the language in Watson can

                                               -9-
be considered dicta. In Watson, the driving by the defendant which this Court held
established reasonable suspicion to justify an investigatory stop was established as follows:

        The road was described by the officer as “curvy.” After the defendant
        entered the roadway from the “Runway Bar,” Officer Stiles followed the
        defendant for about one-half of a mile. Officer Stiles testified that during
        that one-half of a mile, the defendant crossed the fog line, returned to his
        own lane of traffic, crossed the fog line a second time, then “corrected” by
        driving across his own lane and crossing the yellow line into the oncoming
        lane of traffic. There were no other vehicles on the road at the time. At that
        time, Officer Stiles initiated a traffic stop.

Watson, 354 S.W.3d at 327.

       The holding of this Court in Watson was,

        [T]he officer’s testimony, accredited by the trial court, is the basis by which
        we discern whether there was reasonable suspicion for the stop. In that
        regard, the testimony presented by Officer Stiles was that he personally saw
        within one half mile Appellant cross the fog line on two occasions in
        addition to crossing the yellow center line once. The officer mentioned that
        Appellant was seen pulling his car onto the highway from a bar. This Court
        has previously held that an officer’s observation of a defendant’s crossing
        over the center line in addition to weaving within his own lane is sufficient
        reasonable suspicion to support an investigatory stop and cause the denial
        of a motion to suppress. Tennessee v. William Robert Wilson, No. M2009-
        01146-CCA-R3-CD, 2010 WL 2966747, at *6-8 (Tenn. Crim. App., at
        Nashville, Jul. 26, 2010), perm. app. denied (Tenn. Nov. 17, 2010); State
        v. Jody Glen Loy, No. E2006-02206-CCA-R3-CD, 2008 WL 2229259, at
        *5 (Tenn. Crim. App., at Knoxville, May 30, 2008). In this case, Appellant
        crossed the yellow line once and the fog line twice, certainly more than
        weaving within his own lane of traffic. Moreover, even if Appellant only
        crossed the double yellow lines one time, without reasonable cause, that
        evidence in and of itself would equate to probable cause to initiate a traffic
        stop under Tennessee Code Annotated sections 55-8-121 or 55-8-123.

Id., at 331 (emphasis added).




                                             -10-
      Defendant in this appeal also relies upon this Court’s holding in State v. Smith, 21
S.W.3d 251 (Tenn. Crim. App. 1999). We acknowledge the court in Watson distinguished
both Smith and Ann Elizabeth Martin in the following manner:

        Likewise, in Smith and Ann Elizabeth Martin, this Court determined that
        there was no reasonable articulable suspicion for stopping the defendants’
        vehicles where the defendants crossed over the white line one time on a
        four-lane highway while changing lanes. Smith, 21 S.W.3d at 257-58; Ann
        Elizabeth Martin, 2000 WL 1273889, at *6-7.

Watson, 354 S.W.3d at 330.

        We acknowledge that the Watson opinion’s reason to distinguish Ann Elizabeth
Martin (and also Smith, discussed below) can arguably support Defendant’s assertion that
crossing a fog line one time does not even constitute reasonable suspicion to justify an
investigatory stop, much less probable cause to bring a charge for violation of a criminal
offense. Taken in context with consideration of the opinion as a whole, we conclude that
there is not a contradiction in this Court’s reasoning in Watson. It seems clear to us that the
Court distinguished Smith and Ann Elizabeth Martin on the basis of considering whether
reasonable suspicion justified an investigatory stop because of the commission of an offense
other than a traffic offense, specifically DUI. That appears to be the only logical explanation
to explain the Watson court’s conclusion that crossing a line one time would constitute
probable cause to initiate a traffic stop under T.C.A. § 55-8-123, the relevant criminal
offense in the case sub judice.

       As noted above, Defendant relies on Smith, arguing that in that case, the Court of
Criminal Appeals “opined that a vehicle driving on a white line after making a lane change
does not rise to the level of even reasonable suspicion.” However, we note that the Court in
Smith noted one thing that distinguishes the facts of Smith from the facts in Defendant’s case.
The Smith court stated “There was no evidence that [Smith] moved out of his lane.” Smith,
21 S.W.3d at 258.

       In its brief the State failed to divide its argument between “probable cause” and
“reasonable” suspicion as Defendant did. Furthermore, the State’s citation to legal
authorities was primarily focused upon distinguishing the cases relied upon by Defendant.
Also, the State basically confined its legal argument to the issue of whether Trooper
Achinger had reasonable suspicion to justify an investigatory stop, but the State’s argument
seems more inclined to assert he had reasonable suspicion to investigate Defendant for DUI
(The trooper “had received specialized training in DUI detection and enforcement and had
been a part of over 300 DUI investigations. . . . within the span of only half a mile, Trooper

                                             -11-
Achinger observed the defendant’s vehicle swerve on three occasions onto the white fog line.
. . . On one of the three occasions, the vehicle’s tires drove completely over the fog line -
nearly six inches.”). We respectfully note, as stated above, the State waived any argument
in this certified question of law that reasonable suspicion of DUI justified the stop.

       Neither party has cited our supreme court’s opinion in State v. Brotherton, 323 S.W.3d
866 (Tenn. 2010). In Brotherton, the supreme court held that a police officer had reasonable
suspicion, based upon specific and articulable facts, to stop the defendant for violation of the
Class C misdemeanor offense of violation of T.C.A. § 55-9-402(b). Id. at 871. That
particular subsection of T.C.A. § 55-9-402 mandates that each 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.” T.C.A. § 55-9-402(b)(2). In
Brotherton, the Highway Patrol trooper stopped the defendant’s vehicle after the trooper
observed a “bright light” shining from the passenger side’s taillight area as the vehicle
slowed down approaching a railroad crossing. The trooper concluded that the taillight was
obviously broken.

        As a result of investigation after the stop, the defendant was charged with DUI. He
filed a motion to suppress all evidence because of the alleged illegal stop. Although proof
showed that the defendant had covered the cracked taillight with red “tail light tape” in order
to comply with the requirements of the law codified in T.C.A. § 55-9-402, the evidence also
was that the “weathered tape [ ] had a hole in the center . . . with light shining through.” Id.
at 869. The trial court denied the motion to suppress. The defendant entered a negotiated
guilty plea to DUI and properly reserved a certified question of law pertaining to the motion
to suppress. On appeal, this Court reversed, on the basis that the trooper “lacked reasonable
suspicion to initiate a traffic stop.” Id.

       Our supreme court reversed the decision of the panel of the Court of Criminal
Appeals. In doing so, our supreme court made the following holding, which along with the
additional quoted approval of an analysis in United States v. Johnson, 242 F.3d 707 (6 th Cir.
2001), compels us to conclude that the judgment in the case sub judice must be affirmed.

        The Court of Criminal Appeals erred by considering only whether the
        taillight on Mr. Brotherton’s automobile was “in good condition and
        operational” for the purpose of Tenn. Code Ann. § 55-9-402(c). 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. Illinois v. Wardlow, 528 U.S. 119 at 126, 120 S.Ct. 673.
        Thus, the proper inquiry should have been whether Trooper Sullivan had an
        “articulable and reasonable suspicion” that Mr. Brotherton’s taillight

                                              -12-
         violated Tenn. Code Ann. § 55-9-402, not whether Mr. Brotherton’s
         taillight, in fact, violated Tenn. Code Ann. § 55-9-402. See United States
         v. Johnson, 242 F.3d at 709-10 (“[T]he question is not whether a Tennessee
         court would have found defendant guilty of the traffic infraction, but
         whether the officers had probable cause to believe that a violation had
         occurred.”)

Brotherton, 323 S.W.3d at 871 (emphasis added).

        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 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 a 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 violation of T.C.A. § 55-8-
123(1), the unpublished opinion should not be followed.

        The appellate record shows that the trooper, both the trial level and appellate level
prosecutors, and the trial judge all concluded that when Defendant crossed the fog line one
time, Trooper Achinger had probable cause to stop her vehicle to issue a citation for violation
of the Class C misdemeanor offense of failure to drive “as nearly as practicable entirely
within a single lane” pursuant to T.C.A. § 55-8-123(1). Pursuant to our understanding of the
anaylsis by our supreme court in Brotherton set forth above, we are compelled to conclude
that the modicum of evidence observed by Trooper Achinger, even if clearly not enough to
support a conviction for the Class C misdemeanor offense detailed in T.C.A. § 55-8-123(1),
was sufficient to establish both “probable cause” and “reasonable suspicion” to justify a stop
of Defendant for violation of T.C.A. § 55-8-123(1). We understand that our holding in this
case will likely mean that all drivers (including law enforcement officers, prosecutors, and
judges) who briefly cross a fog line on the highways in Tennessee can be pulled over on the
basis that the otherwise “innocent” driver has established probable cause that she or he has
committed a Class C misdemeanor criminal offense. However, case law has clearly defined
“probable cause” and “reasonable suspicion.” The General Assembly long ago chose to
criminalize a driver’s failure to drive within a single lane of traffic “as nearly as practicable.”
In Brotherton, our supreme court has approved a stop solely for a traffic violation based on
“probable cause” or “reasonable suspicion,” even when it is clear that a Tennessee court
would not have found the driver guilty of the traffic violation. Brotherton, 323 S.W.3d at

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871 (citing United States v. Johnson, 242 F.3d 707, 709-10 (6 th Cir. 2001)); See also State
v. Andrew Quinn, No. M2013-01683-CCA-R3-CD, 2014 WL 2000666 (Tenn. Crim. App.
May 14, 2014)(Defendant maintained that he did not violate the law while drifting over the
fog line on the exit ramp because he contended that it was a single lane of traffic. However,
in accordance with Terry, a showing of reasonable suspicion does not require an actual
violation of the law)(citing Illinois v. Wardlow, 528 U.S. 119, 126, 120 S.Ct. 673, 145
L.Ed.2d 911 (1996) and State v. Brotherton, 323 S.W.3d 866, 871 (Tenn. 2010)).

       The judgment of the trial court is affirmed.


                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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