Court of Criminal Appeals of Tennessee, Knoxville
Session Date July 23, 2014
Appeal from the Criminal Court for Knox County No. 95235 John F. Dugger, Jr., Judge
Donald A. Bosch and Ann C. Short, Knoxville, Tennessee, for the appellant, William Whitlow Davis, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Sarah Keith, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which Robert W. Wedemeyer, J., and Timothy L. Easter, Sp. J., joined.
JAMES CURWOOD WITT, JR., JUDGE
The Knox County Criminal Court grand jury charged the defendant with alternative counts of driving under the influence of an intoxicant ("DUI") and driving with a blood alcohol concentration of .08 percent or more ("DUI per se"), as well as failure to drive within a single lane of traffic. On December 11, 2012, the defendant filed a motion to suppress evidence of his intoxication, contending that the traffic stop which led to his arrest constituted an illegal seizure.
At the August 12, 2013 evidentiary hearing on the motion to suppress, Knox County Sheriff's Department Officer Jerry Massey testified that, on October 23, 2009, he received a report from dispatch to be on the lookout ("BOLO") for "a green BMW" whose driver "had a loaded handgun and was under the influence" following a domestic altercation. After ascertaining that the driver, later identified as the defendant, resided on Keller Bend Road, Officer Massey proceeded to the intersection of Keller Bend and Northshore Drive, and he parked his cruiser in a parking lot at that intersection. Approximately 25 minutes after receiving the BOLO, Officer Massey saw the defendant drive by on Keller Bend, a two-lane road, heading southbound. Officer Massey began to follow the defendant, and he testified that he witnessed the defendant cross the center double yellow lines "a couple of times, several times" before he initiated his video recording equipment. Officer Massey also opined that the defendant was "traveling in excess of the 25 miles an hour posted speed limit" based on his pacing of the defendant.
At 2:28:22 a.m., Officer Massey turned on his cruiser's video recorder. The video recording reveals that Officer Massey followed the defendant's vehicle for approximately 33 seconds before activating his blue lights to stop the defendant. The video recording shows that, before the emergency equipment is activated, the defendant's left tire touched the center line once at approximately 2:28:41, and at 2:28:53, the defendant's left tires crossed over the double yellow lines. Officer Massey activated his blue lights two seconds later, and the defendant stopped his vehicle shortly thereafter.
On cross-examination, Officer Massey acknowledged that he found no weapon when he stopped the defendant. Officer Massey also conceded that Keller Bend is a curvy road "without shoulders" which "drops off into dirt, gravel or woods." Officer Massey stated that only "the left portion" of the defendant's vehicle crossed the double yellow lines and that there was no oncoming traffic at that time.
At the conclusion of the hearing, the trial court concluded that the defendant's crossing of the double yellow lines gave Officer Massey "reasonable and articulable facts that it was a violation, enough for a . . . traffic stop, certainly, and for a ticket on violation of the rules of the road." Although the trial court could not find clear and convincing evidence that the defendant was speeding, the court determined that the defendant had "clearly" violated Tennessee Code Annotated sections 55-8-115 and 55-8-120.
Following the trial court's denial of a motion to suppress, the defendant pleaded guilty to DUI per se, and the remaining charges were dismissed by agreement. The defendant also reserved, with the consent of the State and the trial court, a certified question of law that is dispositive of the case:
In the early morning hours of October 23, 2009, Knox County Sheriff's Deputy Massey observed a vehicle driven by the defendant traveling on Keller Bend Road in Knox County. Deputy Massey effected a seizure of the defendant by activating his emergency lights, in response to which the defendant stopped his vehicle. Deputy Massey subsequently arrested the defendant and took him into custody for the offense of DUI. Did the trial court correctly conclude that the state carried its burden to show that the traffic stop of the defendant was justified by reasonable suspicion or probable cause that a criminal offense had been or was about to be committed, based on the manner in which the defendant was operating his vehicle on Keller Bend Road[?]
Discerning that this question was properly certified pursuant to Tennessee Rule of Criminal Procedure 37(b), we will examine the trial ...