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United States v. Pace

October 18, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARCI DIANE PACE, DEFENDANT.



The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge

MEMORANDUM AND ORDER

This matter came before the Court on Defendant Marci Pace's Motion to Suppress [Doc. 2]. Ms Pace challenges the validity of the traffic stop that led to the instant charges of Driving Under the Influence of an Intoxicant and Violation of Implied Consent Law in the Great Smoky Mountains National Park on February 28, 2007. The United States opposes the motion to suppress at [Doc. 7]. The Court conducted an evidentiary hearing on the merits of this motion. Ms. Pace was present at the hearing along with her attorney, Joseph A. Baker. The government was represented by Assistant United States Attorney Robert E. Simpson.

The Court received testimony from National Park Service Ranger Robert Fleming and received one exhibit into evidence; arguments were made by Attorney Baker and AUSA Simpson. Given the importance of the factual details of the automobile stop to this motion to suppress, and the importance of accuracy, the parties requested leave to file post-hearing briefs in light of the record established, and the Court took this matter under advisement after receiving such supplemental argument.

The record before the Court is as follows.

I. FACTS

On February 28, 2007, Ranger Robert Fleming (Fleming) was on patrol duty in the Great Smoky Mountains National Park. Fleming was stationed in his patrol car along the four-lane U.S. Highway 441 between Pigeon Forge and Gatlinburg, a short stretch of highway known as "the Spur." [Tr. 4]. Fleming was monitoring traffic on the Spur using a radar device.

Around 11 o'clock that night, Fleming was pulled off the Spur roadway at the Little Smoky Exit doing paperwork in his car, which was parked facing North with its parking lights on . [Tr. 6]. Fleming became aware of cars approaching along the Spur and when he glanced up from his paperwork at the radar device it registered a speed of 70 - 72 m.p.h. as three or four vehicles passed. [Tr. 7]. Fleming testified that he pulled out onto the Spur and fell in behind the group of cars, but that he did not intend to stop any of them for speeding because he was not sure which one had been traveling 70 - 72 m.p.h. Fleming testified that as he pulled in behind the cars, one of them turned off the Spur onto Legion Field Bridge [Tr. 7]. Fleming continued northbound behind the remaining three cars, primarily for the purpose of slowing them down and keeping them within the speed limits. [Tr. 8].

Fleming testified that as he followed the vehicles, one of them "kind of drove off the right side of the road." [Tr. 8]. Fleming elaborated that he was traveling in the left, or passing, lane when he observed this car, traveling in the right, or slow, lane "almost leave off the right side of the road." [Tr. 9]. Fleming then change to the slow lane and followed behind the subject vehicle, a Mercury with Tennessee license tags. Fleming also described the driving behavior as crossing to the shoulder of the right lane and testified that "I could see dust kick up." [Tr. 10]. This took place just before the group of cars entered a tunnel. As he made the decision to focus his observations on this vehicle, Fleming activated his in-cruiser camera. [Tr. 10].

Fleming then followed the defendant about two miles before he activated his emergency blue lights to stop the Mercury. Fleming testified that he was stopping the Mercury "to check the driver for sobriety, that they were weaving, and to see if the driver was alright to operate the vehicle." [Tr. 11]. With respect to the description of "weaving," Fleming explained that prior to the stop, the car stayed within its own lane, with the one exception of crossing the fog line to the right before entering the tunnel. [Tr. 11]. Fleming testified that the Mercury came to a stop for the blue-lights "just inside the city limits of Pigeon Forge." [Tr. 12].

The government then played part of the in-cruiser videotape and offered it into evidence as Exhibit 1 to the hearing. The videotape begins after the cars passed through the tunnel (which was after the driving behavior that attracted the ranger's attention to the Mercury). The videotape depicts the subject vehicle driving within its lane of travel. While the vehicle does not travel along in a perfectly a straight line, it is not observed crossing either the right or left border lines. When asked why he did not stop the vehicle after he originally noticed what he termed "weaving in the lane", Ranger Fleming testified:

I typically want to give somebody a second chance. I thought maybe that area, prior to the tunnel, maybe it was a tourist, they weren't sure where they were going, because there's an exit at Beech Branch. So I wanted to give them some more time to watch, I wanted to give them more time to straighten out their driving. If they had straightened out the driving, I wouldn't have made a stop, would have just continued on my way. So I wanted to give them more time. [Tr. 15]

Fleming also testified that there was an earlier safe place at which he might have conducted the traffic stop, but that it was not as safe a spot for the standardized field sobriety tasks. [Tr. 16].

On cross-examination, Fleming confirmed that he was unable to discern which of the original group of cars was driving 70 m.p.h. as they passed him just outside the city limits of Gatlinburg traveling North. [Tr. 17]. Fleming followed the group of cars for about a mile and a half before they reached the tunnel. During this stretch, the only noticeable driving behavior was the sole incidence of dust kicking up to the right side of the Mercury, as previously described. [Tr. 18]. Fleming confirmed that at times there is dirt and debris on the roadway along the Spur [Tr.19]. Fleming testified that he did not actually see the wheels of the Mercury travel over the fog line because he was positioned in the passing lane, diagonal to the Mercury, [Tr. 18], and offered the following additional testimony upon cross examination by Mr. Baker regarding the driving he observed:

Q: But to be clear, sir, you did not see the Mercury's tires leave the road; you only saw the dust, fair?

A: Yes.

Q: And as the Mercury approached the tunnel, you've testified, that the Mercury was traveling at a safe speed?

A: Yes.

Q: A lawful speed. And, in fact, you did not observe any violations of the law as you ...


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