             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                            March 29, 2011 Session

                  STATE OF TENNESSEE v. JAMES RYAN WATSON

                            Appeal from the Criminal Court for Polk County
                                  No. 09-085 Carroll L. Ross, Judge



                           No. E2010-00884-CCA-R3-CD - Filed June 8, 2011


Appellant, Ryan Watson,1 was indicted in June of 2009 by the Polk County Grand Jury for
driving under the influence (“DUI”) of an intoxicant, marijuana, narcotic drug, or drug
producing stimulating effects on the central nervous system, or in the alternative, driving
while the alcohol concentration in the defendant’s blood or breath was .08% or more. Prior
to trial, Appellant filed a motion to suppress the following: (1) the search of his person and
vehicle; (2) his statement at the time of the arrest; (3) the results of the blood alcohol test; and
(4) the results of the field sobriety tests. After a hearing, the trial court denied the motions.2
Subsequently, Petitioner pled guilty to DUI, first offense and was sentenced to eleven months
and twenty-nine days incarceration in the county jail. The trial court suspended the sentence,
after service of forty-eight hours, and ordered Appellant to serve the sentence on probation.
As a condition of the guilty plea, Appellant reserved a certified question of law pursuant to
Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure arguing that the trial court
erred in denying the motion to suppress. After a thorough review of the record, we conclude
that the evidence does not preponderate against the factual findings of the trial court that
there was probable cause for the stop of Appellant’s vehicle. Therefore, we affirm the
decision of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and J.C. M CL IN, JJ., joined.

G. Scott Kanavos, Cleveland, Tennessee, for the appellant, James Ryan Watson.

         1
         Some of the pleadings refer to Appellant as James Ryan W atson. The indictments, however, refer to Appellant
as Ryan W atson.

         2
          Although it is clear from the record that the trial court denied the motions, the record does not contain an order
in which the motions were denied.
Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Jerry N. Estes, District Attorney General, and Brooklynn Townsend, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                      Factual Background

        On the evening of July 22, 2009, Officer Glen Stiles of the Polk County Sheriff’s
Department observed Appellant driving a vehicle on a two-lane section of Highway 68 South
in Polk County. The road was described by the officer as “curvy.” After Appellant entered
the roadway from the “Runway Bar,” Officer Stiles followed Appellant for about one-half
of a mile. Officer Stiles testified that during that one-half of a mile, Appellant 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. Officer Stiles testified that there was no videotape of the events
leading up to the stop. Appellant did not testify at the hearing. Counsel for Appellant argued
that Tennessee law does not require that a citizen driver follow a perfect “vector” down the
highway in order to be free from a traffic stop and subsequent search and seizure. In other
words in counsel’s view, Officer Stiles did not have probable cause to stop Appellant.

       At the conclusion of the hearing, the trial court determined that the “stop, subsequent
search, and arrest” were valid, and denied the motion to suppress.

       Appellant then entered a guilty plea and reserved a certified question of law for appeal
pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure. At the guilty
plea submission hearing, the State summarized the facts as follows:

       On the date alleged in the indictment, Officer Glen Stiles with the Polk County
       Sheriff’s office observed a vehicle traveling on Highway 68 South in
       Copperhill. He observed the vehicle cross the white line two times and the
       yellow line one time in less than half-a-mile. When he made contact with the
       subject, there was a very strong odor of an alcoholic beverage about him. He
       asked the defendant if he’d been drinking, and he said, “About four or five
       beers.” He was asked to perform the field sobriety tests. He failed all three
       tests that he performed, the HGN, one-leg stand, and walk and turn. He was
       arrested and transported to Ducktown where he was offered a breathalyzer,
       with the results being a .15.

                                                -2-
The trial court accepted the guilty plea to one count of DUI. The trial court sentenced
Appellant to eleven months and twenty-nine days, and ordered Appellant to spend the
sentence on probation after service of forty-eight hours of incarceration.

        In conjunction with the entry of the guilty plea, Appellant properly preserved a
certified question of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal
Procedure3 for appeal to this Court. Appellant’s certified question of law on appeal is the
following:

       [W]hether based upon the testimony of the officer, the State of Tennessee
       demonstrated that either a reasonable suspicion or probable cause existed that
       a crime was being committed by the defendant sufficient to justify the stop,
       search, and seizure of the defendant within his rights as protected by Article
       I Section 7 of the Tennessee Constitution and amendments IV and XIV of the
       Constitution of the United States.



      3
          In pertinent part, Rule 37(b) of the Tennessee Rules of Criminal Procedure provides:

       The defendant or the state may appeal any order or judgment in a criminal proceeding when the law
       provides for such appeal. The defendant may appeal from any judgment of conviction:

       (1) on a plea of not guilty; or

       (2) on a plea of guilty or nolo contendere, if:

                (A) the defendant entered into a plea agreement under Rule 11(a)(3) but explicitly reserved -
       with the consent of the state and of the court - the right to appeal a certified question of law that is
       dispositive of the case, and the following requirements are met:

                (i) the judgment of conviction or other document to which such judgment refers that is filed
       before the notice of appeal, contains a statement of the certified question of law that the defendant
       reserved for appellate review;

               (ii) the question of law is stated in the judgment or document so as to identify clearly the
       scope and limits of the legal issue reserved;

                (iii) the judgment or document reflects that the certified question was expressly reserved with
       the consent of the state and the trial court; and

                (iv) the judgment or document reflects that the defendant, the state, and the trial court are of
       the opinion that the certified question is dispositive of the case; . . . .




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                                           Analysis

        On appeal, Appellant argues that the trial court improperly denied the motion to
suppress. Specifically, Appellant contends that the holdings and factual scenarios presented
in the cases of United States v. Freeman, 209 F.3d 464, 466 (6 th Cir. 2000); State v. Binette,
33 S.W.3d 215 (Tenn. 2000); State v. Smith, 21 S.W.3d 251 (Tenn. Crim. App. 1999); State
v. Ann Elizabeth Martin, No. E1999-01361-CCA-R3-CD, 2000 WL 1273889 (Tenn. Crim.
App., at Knoxville, Sept. 8, 2000); State v. John Crawley, Sr., No.
M2003-01289-CCA-R3-CD, 2004 WL 112867 (Tenn. Crim. App., at Nashville, Jan. 23,
2004), perm. app. denied (Tenn. June 23, 2004); and State v. Frank Edward Davidson, No.
E2007-02841-CCA-R3-CD, 2008 WL 8429683 (Tenn. Crim. App., at Knoxville, Sept. 10,
2008), demonstrate that a driver is not required to drive perfectly on the highways in order
to avoid being stopped by police and subjected to a seizure. Applying the rationale in those
cases to the facts herein, Appellant claims that “none of his driving conduct was such to
warrant an impermissible stop by Deputy Stiles.” The State, on the other hand, argues that
Officer Stiles “had reasonable suspicion based on specific and articulable facts - personal
observation of [Appellant’s] crossing the fog line twice and crossing into the opposing lane
of traffic in a two-lane highway - to initiate an investigatory stop.” Further, the State points
out that Officer Stiles had “probable cause to conduct a stop of [Appellant’s] vehicle based
on a traffic violation.” In other words, the State insists that the trial court properly denied
the motion to suppress.

        Our analysis begins with the standard of review. In analyzing a trial court’s decision
on a motion to suppress, an appellate court is to conduct a de novo review regarding the trial
judge’s application of the law to the evidence presented. State v. Bridges, 963 S.W.2d 487,
490 (Tenn. 1997); State v. Yeargan, 958 S.W.2d 626, 628-29 (Tenn. 1997). Our standard
of review for a trial court’s findings of fact and conclusions of law on a motion to suppress
evidence is 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. As is customary, “the 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)). Nevertheless, this
Court reviews de novo the trial court’s application of the law to the facts, without according
any presumption of correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81
(Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). When the trial court’s
findings of fact are based entirely on evidence that does not involve issues of witness
credibility, however, appellate courts are as capable as trial courts of reviewing the evidence
and drawing conclusions, and the trial court’s findings of fact are subject to de novo review.
Binette, 33 S.W.3d at 217.

                                              -4-
       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures by government agents. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “These
constitutional provisions are designed to ‘safeguard the privacy and security of individuals
against arbitrary invasions of government officials.’” Keith, 978 S.W.2d at 865 (quoting
Camara v. Mun. Ct., 387 U.S. 523, 528 (1967)). The Tennessee Supreme Court has noted
previously that “[a]rticle I, [section] 7 [of the Tennessee Constitution] is identical in intent
and purpose with the Fourth Amendment [of the United States Constitution],” and that
federal cases applying the Fourth Amendment should be regarded as “particularly
persuasive.” Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968).

       Under both constitutions, “a warrantless search or seizure is presumed unreasonable,
and evidence discovered as a result thereof is subject to suppression unless the State
demonstrates that the search or seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.” Yeargan, 958 S.W.2d at 629 (citing
Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)); see also State v. Garcia, 123
S.W.3d 335, 343 (Tenn. 2003).

        One of these narrow exceptions occurs when a law enforcement officer stops an
automobile based on probable cause or reasonable suspicion that a traffic violation has
occurred. Whren v. United States, 517 U.S. 806, 810 (1996); State v. Randolph, 74 S.W.3d
330, 334 (Tenn. 2002); Vineyard, 958 S.W.2d at 734. If the officer has probable cause to
believe that a traffic violation has occurred, any seizure will be upheld even if the stop is a
pretext for the officer’s subjective motivations in making the stop. See Whren, 517 U.S. at
813-15; State v. Vineyard, 958 S.W.2d 730, 734-35 (Tenn. 1997). Another such exception
occurs when a law enforcement officer initiates an investigatory stop based upon specific and
articulable facts that the defendant has either committed a criminal offense or is about to
commit a criminal offense. Terry v. Ohio, 392 U.S. 1, 20-21(1968); Binette, 33 S.W.3d at
218. This narrow exception has been extended to the investigatory stop of vehicles. See
United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975); State v. Watkins, 827 S.W.2d
293, 294 (Tenn. 1992). In evaluating whether the law enforcement officer had reasonable
suspicion to justify an investigatory stop, this Court must consider the totality of the
circumstances, which includes the personal observations and rational inferences and
deductions of the trained law enforcement officer making the stop. See Terry, 392 U.S. at 21;
Binette, 33 S.W.3d at 218; Watkins, 827 S.W.2d at 294. Objective standards apply, rather
than the subjective beliefs of the officer making the stop. State v. Day, 263 S.W.3d 891, 903
(Tenn. 2008); State v. Norword, 938 S.W.2d 23, 25 (Tenn. Crim. App. 1996). “An officer
making an investigatory stop must be able to articulate something more than an ‘inchoate and
unparticularized suspicion or ‘hunch.’” Day, 263 S.W.3d at 902 (quoting Terry, 392 U.S.
at 27). This includes, but is not limited to, objective observations, information obtained from

                                              -5-
other police officers or agencies, information obtained from citizens, and the pattern of
operation of certain offenders. Id.; Watkins, 827 S.W.2d at 294 (citing United States v.
Cortez, 449 U.S. 411, 418 (1981)). A court must also consider the rational inferences and
deductions that a trained police officer may draw from the facts and circumstances known
to him. Terry, 392 U.S. at 21.

       In the case herein, it is clear that Appellant was “seized” within the meaning of the
state and federal Constitutions. Officer Stiles testified that he initiated a traffic stop of
Appellant’s vehicle. Thus, in order for the stop to be constitutionally valid, Officer Stiles
must have at least had a reasonable suspicion, supported by articulable facts, that Appellant
had committed, or was about to commit an offense.

       As stated previously, Appellant relies upon Freeman, Binette, Smith, Ann Elizabeth
Martin, John Crawley, Sr., and Frank Edward Davidson, to support his argument that his
actions did not give rise to reasonable suspicion for a traffic stop.

       We determine that these cases are distinguishable from the facts presented to the trial
court herein. In Freeman, the defendant was driving a motor home around a curve on a
windy day when the vehicle crossed into the emergency lane of a four-lane interstate one
time for a distance of approximately twenty to thirty feet. 209 F.3d at 466-68. The court
determined that there was no probable cause to support the stop because “one isolated
incident of a large motor home partially weaving into the emergency lane for a few feet and
an instant in time [does not] constitute[ ] a failure to keep the vehicle within a single lane ‘as
nearly as practicable.’” Id. (quoting United States v. Gregory, 79 F.3d 973, 978 (10 th Cir.
1996)). 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 257-58l; Ann Elizabeth Martin, 2000 WL 1273889, at *6-7.

        In John Crawley, Sr., the defendant was stopped by police after he drifted to the left
side of the road twice after stopping in the middle of an intersection after a yield sign. 2004
WL 112867, at *1. This Court determined that there was no reasonable suspicion to stop the
defendant when the defendant was driving on a residential street with no lines. The video
showed the defendant moving to the left side of the road to avoid a parked car. Id. Further,
the defendant himself testified that he stopped in the middle of the intersection because he
was not familiar with the area. Id.

       Frank Edward Davidson also concerns the investigatory stop of a motorist and a
recording of the defendant’s driving immediately prior to the stop. 2008 WL 8429683, at *1.
In Frank Edward Davidson, the defendant was stopped by an officer after a witness called

                                               -6-
the police to report that a possibly intoxicated individual had gotten into a maroon or red car.
Id. The defendant failed to signal when changing lanes and crossed the center line four
times. Id. The officer stopped the driver and arrested the defendant for DUI. The defendant
subsequently filed a motion to suppress. Id. At the hearing, the officer testified, and the trial
court viewed the video recording. The trial court granted the motion to suppress stating in
its findings that it did not appear that the defendant crossed the yellow line. Id. at *2. On
appeal, this Court held that the trial court’s decision should be reversed. Id. at *5. This
Court stated that after viewing the videotape it found that the defendant did actually veer
over the yellow line. This evidence in conjunction with the officer’s testimony and the
information reported to the police dispatcher were enough to find reasonable suspicion to
support the stop. Id. at *5.

        Finally, in Binette, our supreme court reversed a trial court’s determination that an
officer had reasonable suspicion to stop the defendant because the videotape of the encounter
only showed the defendant making lateral movements within his own lane of travel. At the
hearing held in the trial court on the motion to suppress, the officer did not testify, and the
videotape made immediately before the stop was the only evidence introduced. 33 S.W.3d
at 219. The court commented that the “number of times that a vehicle touches the center line
or drifts within a lane is not dispositive of the issue before this Court. Rather, . . . a court
must consider the totality of the circumstances in determining whether reasonable suspicion
was present at the time a stop was initiated.” Id.

       In Binette, along with John Crawley Sr., Smith, Ann Elizabeth Martin, and Frank
Edward Davidson, there was a videotape of the defendants’ driving.4 In the case herein,
there was no video recording of Appellant’s driving. Therefore, the 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

       4
           It is not clear in Freeman if there was a videotape of the defendant’s driving.

                                                           -7-
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.

       We conclude that the testimony of Officer Stiles demonstrates that there was
reasonable articulable suspicion to justify a traffic stop. There is no basis upon which to
reverse the trial court’s denial of Appellant’s motion. In other words, the evidence does not
preponderate against the findings of the trial court.

       Therefore, this issue is without merit.

                                        Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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