Court of Criminal Appeals of Tennessee, Knoxville
Session April 22, 2014
Appeal from the Criminal Court for Hamblen County No. 12CR715 John F. Dugger, Jr., Judge
Jonathan M. Holcomb, Morristown, Tennessee, for the appellant, Somer D. Wild.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; C. Berkeley Bell, District Attorney General; and Dan E. Armstrong, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Thomas T. Woodall and Roger A. Page, JJ., joined.
ALAN E. GLENN, JUDGE
The defendant was operating her vehicle on a rainy evening in Morristown. The quality of the video recording of her driving is poor, apparently because of both weather and road conditions. As we will explain, the State relied upon the video of the defendant's driving to justify the stop of her vehicle.
At the hearing on the defendant's motion to suppress evidence, Officer Brad Rice of the Morristown Police Department testified that on April 25, 2012, he was working the late-night shift, traveling westbound on West Andrew Johnson Highway when he observed the defendant's black Range Rover pull out from Taco Bell in front of him. Officer Rice testified as to his limited memory of the incident: "What I remember is just from the video. I know in the video I say they went over the line twice; that's not in there. The portion where she's going over the line for the long amount of time is in that video, if I recall correctly."
Additionally, Officer Rice acknowledged that he could not remember how long the defendant straddled the line but that it was an "extended thing. It's on the video." He added that the defendant straddled the turn lane and fast lane for "a significant amount of time" and never turned left or went back into her lane. As to his bases for stopping the defendant's vehicle, he responded, "I do not believe everything is on the video because I stated in the video that you went over the line twice, which would be failure to maintain there, due to that prerecord being only 30 seconds. But due to the age, I just – I really can't remember."
At the conclusion of the hearing on the motion to suppress, the trial court denied the motion, making lengthy oral findings:
The Court finds sometime after midnight on April 25th, 2012 that Officer Rice was traveling on West AJ Highway, observed a black Range Rover pull out of Taco Bell heading west on West Andrew Johnson Highway. The Court finds that he is not clear on his recollection as to what occurred prior. He . . . can't say there's clear and convincing evidence as to . . . when, where and what happened, but the tape speaks for itself. The tape shows, and you have to watch the tape very closely, and I think you have to be familiar with the roads, and, of course, I've lived in Hamblen County 53 years and I'm pretty familiar with the area. . . . [T]he Court finds that [the defendant] did cross over that lane – that line into the turn lane in the vicinity of, it appears, the intersection of Economy Road. . . . And traveled a short distance straddling that line. But it's difficult to see because the roads are wet, there is glare from the headlights, from the streetlights on the road, but if you look at the line, there is a line, and that she did cross over into that lane, and then she proceeded back into the proper lane, and made a proper turn, turned into the Pilot. Under Binette mere drifting in one's own lane does not constitute reasonable suspicion. And that's what the officer has to have is a reasonable suspicion or reasonable and articulable facts that criminal activity could be afoot and there could be a possible intoxicated driver and that he has enough reasonable suspicion to stop the vehicle.
In this case, it's not really her own lane of travel, a turn lane. And the way West Andrew Johnson Highway is set up, and I take judicial notice of this, there [are] two lanes traveling east, two lanes traveling west. There is a middle lane in between the two lanes on each side. It's a five-lane road. That is a shared turn lane. You can pull in that lane and go left, or you can pull in either direction. It's shared by both lanes of travel as to a turn lane. By crossing over into that other turn lane, there could be another vehicle coming using that turn lane. It could have been an accident. There is reasonable suspicion to stop the vehicle, clearly, by that. The officer doesn't have an independent recollection but the tape speaks for itself. He has reasonable suspicion to stop the vehicle.
In its findings, the trial court identifies the location in Morristown depicted on the video and then takes detailed judicial notice of the layout of the driving lanes in the area. Since the defense did not object to the court's making these findings, we will not ...