                                                                                        11/14/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             September 19, 2017 Session

                 STATE OF TENNESSEE v. JULIA SANFORD

                Appeal from the Criminal Court for Hamilton County
                      No. 294613 Barry A. Steelman, Judge



                            No. E2017-00236-CCA-R3-CD


The Defendant, Julia Sanford, was indicted for failure to maintain her lane, violation of
the financial responsibility law, driving under the influence, and driving under the
influence per se with a blood alcohol content of .20 or higher. The Defendant filed a
pretrial motion to suppress the evidence resulting from the traffic stop of her vehicle.
The trial court denied the Defendant’s motion, and the Defendant pleaded guilty to
driving under the influence and reserved a certified question of law pursuant to
Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the stop of the Defendant’s
vehicle by law enforcement was lawful. After review, we affirm the trial court’s
judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Lee Davis and Janie Parks Varnell, Chattanooga, Tennessee, for the appellant, Julia
Sanford.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; and AnCharlene Davis,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                               I. Facts and Background

       This case arises from the stop of the Defendant’s vehicle on July 11, 2014,
following which the Defendant was arrested for driving under the influence (“DUI”).
Before trial, the Defendant filed a motion to suppress, contending that the police officer
who stopped her vehicle did so unlawfully because he did not have reasonable suspicion
based on specific and articulable facts to do so. The trial court held a hearing, during
which the following evidence was presented: Officer Brian Blumenberg testified that he
was employed by the Chattanooga Police Department in July of 2014 and on the DUI
Task Force at the time. On July 11, 2014, at approximately 2:00 a.m., Officer
Blumenberg was traveling southbound towards downtown Chattanooga on a divided
four-lane road when he observed the Defendant’s vehicle approaching him in the
oncoming northbound lanes. He observed the vehicle “swerve[] over from the fast lane
and was partially into the . . . turning lane. . . , [and] continued going straight,” following
which he turned his police vehicle around and followed the Defendant’s vehicle. He
noticed the Defendant’s vehicle was going “pretty fast” although he did not clock the
vehicle’s speed. Officer Blumenberg testified that it took him a “substantial amount of
time” to catch up to the Defendant’s vehicle, which also indicated to him that the
Defendant’s vehicle was traveling fast. When he caught up to the Defendant’s vehicle,
he noticed that it was in two lanes of traffic at the same time, the right-hand “turn only”
lane and the straight lane. These lanes were separated by a solid white line. At this point
the officer activated his blue lights.

       The State introduced as an exhibit and played for the trial court the video
recording from Officer Blumenberg’s dash camera. In the video, the Defendant’s
oncoming vehicle passes Officer Blumenberg’s vehicle at 1:51:12 a.m. Officer
Blumenberg turns his vehicle around ten seconds later at 1:51:22 a.m. and does not catch
up to the Defendant’s vehicle until 1:52:40 a.m. It is not clear in the video if the
Defendant’s vehicle swerved over a lane-dividing line or crossed over into another lane.
In court, Officer Blumenberg indicated on the video where the Defendant’s vehicle, while
traveling towards him, crossed over the line dividing the “fast” lane and the “turning”
lane.

       On cross-examination, Officer Blumenberg again identified where in the video
recording the Defendant’s vehicle crossed over into the turning lane while she was
traveling straight. He stated that she did this as she came around a curve in the road,
which he clarified meant that she was driving “wide in the curve” and not maintaining
her lane of travel. He agreed that the Defendant was not cited for speeding.

      The trial court denied the Defendant’s motion to suppress, making the following
statements:

              I think it’s difficult to determine, for the Court to determine, and I
       think that was evidenced even in the hearing as the parties attempted to roll
       and then rewind the video related to where the [Defendant’s] motor vehicle
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        was located.

               The witness who is in the best position to testify where the
        [Defendant’s] motor vehicle was located is Officer Blumenberg. I do find
        that his testimony about where the [D]efendant’s vehicle was located is
        credible. He was on the roadway that night, was able to personally observe
        the location of the vehicle.

                His testimony was that her vehicle was halfway in the turning lane
        and halfway in the fast lane. The video doesn’t illustrate that to the Court;
        yet, it also does not contradict that. The Court really isn’t able to tell from
        the video where the vehicle was located.

                 ....

               [T]he totality of the circumstances is that the officer testified that at
        two o’clock in the morning, that he observed a motor vehicle coming from
        the other direction and that half of that vehicle was in one lane and half of it
        was in another lane, and to the officer, he believed, developed a reasonable
        suspicion that, based on that observation, that the [D]efendant had violated
        [T.C.A. § 55-8-123(1)]; and therefore, based on that suspicion, the Court
        finds he was appropriate in making the stop to investigate further.

        The trial court denied the Defendant’s motion to suppress. Thereafter, the
Defendant offered a plea of guilty to DUI, and the other charges were dismissed. The
trial court entered the plea and sentenced the Defendant to eleven months and twenty-
nine days to be suspended after serving forty-eight hours of incarceration. The Defendant
reserved for appeal the following certified question of law:1

        whether the trial court erred in finding that CPD [Officer] Blumenburg had
        reasonable suspicion to stop [the Defendant’s] vehicle and overrule the
        [Defendant’s] motion to suppress the stop.

        Both parties agree that the certified question of law is dispositive of the case.

                                                 II. Analysis

1
  The State contends, and we agree, that the different version in the Defendant’s appellate brief of her certified
question of law was not memorialized in a judgment of conviction or order as required by Tennessee Rule of
Criminal Procedure 37(b)(2)(A). As such, we will review the certified question as it is listed on the judgment of
conviction.
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                              A. Certified Question of Law

       Because this appeal comes before us as a certified question of law, pursuant to
Rule 37(b) of the Tennessee Rules of Criminal Procedure, we must first determine
whether the question presented is dispositive. The question is dispositive “when the
appellate court ‘must either affirm the judgment [of conviction] or reverse and dismiss
[the charges].’” State v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007) (alterations in
original) (quoting State v. Walton, 41 S.W.3d 75, 96 (Tenn. 2001); State v. Wilkes, 684
S.W.2d 663, 667 (Tenn. Crim. App. 1984)). An issue is never dispositive when this
Court may exercise the option to reverse and remand. Wilkes, 684 S.W.2d at 667. This
Court “‘is not bound by the determination and agreement of the trial court, a defendant,
and the State that a certified question of law is dispositive of the case.’” Dailey, 235
S.W.3d at 134-35 (quoting State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App.
2003)). This Court must make an independent determination that the certified question is
dispositive. Id. at 135 (citing State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988)). Rule
37(b)(2) of the Tennessee Rules of Criminal Procedure provides that a defendant may
appeal from any judgment or conviction occurring as the result of a guilty plea. State v.
Long 159 S.W.3d 885, 887 (Tenn. Crim. App. 2004). The following are prerequisites for
an appellate court’s consideration of the merits of a question of law certified pursuant to
Rule 37(b)(2):

       (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 reserved by the defendant 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 judge; and

      (iv) The judgment or document reflects that the defendant, the state, and the
      trial judge are of the opinion that the certified question is dispositive of the
      case . . . .
Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).

       In Preston, our supreme court stated its intention to “make explicit to the bench
and bar exactly what the appellate courts will hereafter require as prerequisites to the
consideration of the merits of a question of law certified pursuant to Tenn. R. Crim. P.
37(b)(2)(i) or (iv).” 759 S.W.2d at 650. Failure to properly reserve a certified question
                                             4
of law pursuant to the requirements stated in Preston will result in the dismissal of the
appeal. Woodlee, 2010 WL 27883, at *2 (citing State v. Pendergrass, 937 S.W.2d 848,
838 (Tenn. 1996)). The importance of complying with the Preston requirements has
been reiterated by our supreme court in State v. Armstrong, 126 S.W.3d 908 (Tenn.
2003), which stated that the Preston requirements are “explicit and unambiguous,” in
rejecting the defendant’s argument in favor of substantial compliance with Tennessee
Rules of Criminal Procedure 37. Id. at 912.

       In the case under submission, the Defendant’s issue on appeal meets these
requirements: she pleaded guilty; the judgment form referenced the certified question;
and the question included on the judgment form is stated so as to identify clearly the
scope and limits of the legal issue reserved and is dispositive of the case. The parties
agreed that the question was dispositive of the case. Thus, we conclude that the issue is
properly before this Court.

                                B. Legality of Traffic Stop

       The Defendant contends that Officer Blumenburg unlawfully stopped her because
he lacked reasonable suspicion based on specific and articulable facts to stop her vehicle.
She contends that the officer’s testimony and the State’s argument at the suppression
hearing demonstrate a misunderstanding and/or misapplication of the traffic law at hand,
Tennessee Code Annotated section 55-8-123(1), which states:

       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;

The Defendant points us to State v. Smith, 484 S.W.3d 393 (Tenn. 2017), for guidance on
the proper reading and application of the traffic statute, and argues that the State has not
proven that it was practicable for her to maintain her lane. The State responds that this
case is virtually the same set of circumstances as those in Smith and that the proof
presented at the hearing was that the Defendant did not maintain her lane when it was
practicable to do so, providing reasonable suspicion for the traffic stop.

       When this Court reviews a trial court’s ruling on a motion to suppress,
“[q]uestions of credibility 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
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of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the
suppression hearing is afforded the “strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.” State v.
Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in a suppression
hearing are upheld unless the evidence preponderates against those findings. See id.
However, the application of the law to the facts found by the trial court is a question of
law and is reviewed de novo. Walton, 41 S.W.3d at 81; State v. Crutcher, 989 S.W.2d
295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

       The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures, and “‘article 1, section 7 [of the Tennessee
Constitution] is identical in intent and purpose with the Fourth Amendment.’” State v.
Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 221 Tenn. 6, 423
S.W.2d 857, 860 (1968)). The analysis of any warrantless search must begin with the
proposition that such searches, and resulting seizures, are per se unreasonable under the
Fourth Amendment to the United States Constitution and article 1, section 7 of the
Tennessee Constitution. This principle against warrantless searches is subject only to a
few specifically established and well-delineated exceptions. See Katz v. United States,
389 U.S. 347, 357 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980).
Evidence discovered as a result of a warrantless search or seizure is subject to
suppression unless the State establishes that the search or seizure was conducted pursuant
to one of the narrowly defined exceptions to the warrant requirement. State v. Binette, 33
S.W.3d 215, 218 (Tenn. 2000).

        An exception to the warrant requirement exists when a police officer conducts an
investigatory traffic stop based on a reasonable suspicion that a criminal offense has been
or is about to be committed. Terry v. Ohio, 392 U.S. 1, 21 (1968); Binette, 33 S.W.3d at
218. In State v. Davis, our supreme court reiterated the standard for determining
reasonable suspicion. Noting that reasonable suspicion is a lower standard than that for
determining the existence of probable cause, the Court stated:

       Reasonable suspicion is a less demanding standard than probable cause not
       only in the sense that reasonable 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.

354 S.W.3d 718, 727 (Tenn. 2011). The Davis court went on to say that:

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       [A] trial court’s determination of whether a police officer’s reasonable
       suspicion is supported by specific and articulable facts is an objective, fact-
       intensive inquiry. It requires the court to consider the totality of the
       circumstances established by the proof. These circumstances include, but
       are “not limited to, objective observations, information obtained from other
       police officers or agencies, information obtained from citizens, and the
       pattern of operation of certain offenders.”

Id. (citations omitted).

         Our supreme court addressed the reasonable suspicion standard in light of the
traffic lane statute at issue in the present case, stating that section 55-8-123(1) “is not a
strict liability offense,” rather it

       contains two contingencies that impact whether crossing over a fog (or
       other lane) line is an offense. First, a motorist is required to remain in a
       single lane only so far as it is ‘practicable’ to do so. . . . Second, if
       remaining in a single lane becomes impracticable, the driver may leave her
       lane of travel only after first ascertaining that the movement can be made
       safely.

Smith, 484 S.W.3d at 404 (footnote omitted). The court went on to hold that section
123(1) was violated when “a motorist strays outside of her lane of travel when either (1)
it is practicable for her to remain in her lane of travel or (2) she fails to first ascertain that
the maneuver can be made with safety.” Id. “[E]ven minor lane excursions may
establish a violation of section 123(1) whether or not the excursion creates a specific,
observed danger.” Id. Lastly, the court stated:

       when an officer observes a motorist crossing a clearly marked fog line, the
       totality of the circumstances may provide a reasonable suspicion sufficient
       to initiate a traffic stop to investigate the possible violation of Section
       123(1). If the officer observes circumstances rendering it practicable for
       the motorist to remain in her lane of travel, that observation will weigh in
       favor of reasonable suspicion. Similarly, if the officer observes that the
       motorist’s crossing of the fog line in some specific regard was unsafe,
       indicating that the driver failed to first ascertain the safety of the lane
       excursion, that observation will weigh in favor of reasonable suspicion. In
       all events, however, a trial court considering the legality of a stop made
       pursuant to Section 123(1) must consider all of the relevant circumstances
       in deciding whether the motorist’s lane excursion gave the officer a
                                                7
       constitutionally sufficient basis to at least suspect that the motorist was
       violating Section 123(1).

Id. at 411.

        The evidence presented at the suppression hearing was Officer Blumenberg’s
testimony and the video recording from his police car. The trial court stated that it was
considering the totality of the circumstances and the evidence presented and found that
Officer Blumenburg’s testimony was credible. The trial court noted that the video
recording was not clear as to whether the Defendant’s car crossed into the turning lane as
she rounded a curve on the roadway because of the low light and lack of clarity on the
video recording. However, the trial court stated that Officer Blumenberg was in the best
position to judge whether she did so, based on the fact that he was present at the scene
and could identify when the infraction occurred. During his testimony, Officer
Blumenberg indicated on the video recording where the Defendant crossed over the line
into the turning lane. He stated that he followed the Defendant’s vehicle, which he
deduced to be speeding based on how long it took him to catch up to her vehicle after the
Defendant passed him. He then observed her vehicle cross the dividing line as she made
a right turn before he effectuated a stop of her vehicle.

        We conclude that the evidence does not preponderate against the trial court’s
findings. It is not entirely clear on the video recording whether the Defendant’s vehicle
crossed over the lane-dividing line. Officer Blumenburg, whose testimony the trial court
credited, specifically identified in the video recording where he determined a traffic
violation had occurred. Nothing in the video contradicts his observation or testimony. In
our view, the video recording also corroborated his testimony that the Defendant was
speeding and later crossed a lane-dividing line with her vehicle. Our supreme court noted
in State v. Brotherton that the “articulable and reasonable suspicion” of a police officer
that a traffic violation has occurred is the proper inquiry into the legality of the stop, not
whether in fact a violation has occurred. 323 S.W.3d 866, 871 (Tenn. 2010). The trial
court did not err when it clearly considered the Smith factors and determined that, based
on the totality of the circumstances, the Defendant’s observed infraction of crossing over
into the turning lane as she proceeded around the bend in the road provided Officer
Blumenburg with the reasonable suspicion necessary to stop the Defendant’s vehicle.
Accordingly, we affirm the trial court’s judgment denying the Defendant’s motion to
suppress and therefore, we affirm the judgment of conviction.




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                                    III. Conclusion

       After a thorough review of the evidence and relevant authorities, we conclude that
the judgment of the trial court is affirmed.

                                                _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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