Court of Criminal Appeals of Tennessee, Nashville
Session February 10, 2015
Appeal from the Circuit Court for Williamson County No. ICR017709 Michael Binkley, Judge
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant District Attorney General, for the appellant, the State of Tennessee.
Mark L. Puryear III, Franklin, Tennessee, for the appellee, Jeffery D. Aaron.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Robert L. Holloway, Jr. and Timothy L. Easter, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
Motion to suppress
State trooper Charles Achinger testified that that on July 7, 2013, at 12:21 a.m., he observed a vehicle "make a choppy, hesitant turn to turn right" at the intersection of Moores Lane and Carothers Parkway in Williamson County. Trooper Achinger testified, "it appeared that the person was turning and then maybe let go of the steering wheel and grabbed it again to turn some more. And did that a couple of times. And that's what drew my attention to the vehicle." Trooper Achinger testified that the driver of the vehicle "reached across with his right hand and flipped [him] off" as he drove by. Trooper Achinger testified that he was "100 percent positive" that the driver raised his middle finger at him. Trooper Achinger waited until the traffic light turned green, made a u-turn at the intersection, and "attempted to catch up to the vehicle to observe more driving actions."
In his testimony while the dashboard video recording from his patrol car was being played, Trooper Achinger described his observations as follows:
When I turned around there was a vehicle in between us. As I went around the first curve, I observed – it is going to be the second vehicle will be the black Ford Explorer.
It is going to be the second vehicle. As they come around the corner, you will see that the Ford Explorer is shading to the left by the continuous left turn lane. When we get up a little further and I zoom the camera in, the vehicle then drifts over to the right. And then right before we go over – there's a hill crest there with a flashing light – he drifts back over to the left. When I came back over that hill crest, I couldn't see the vehicle very well, so I shade[d] my patrol vehicle to the left because there is a car in between us. And that's when I observed the vehicle drift over into the continuous turn lane without using a signal.
Trooper Achinger observed the vehicle for "about a mile. It wasn't very long at all." He testified that the driver "was weaving within his lane of travel." Trooper Achinger acknowledged that he did not make the decision to stop the vehicle after he observed the "choppy turn" and the driver's offensive hand gesture. He activated his blue lights and initiated the traffic stop after he observed the vehicle weaving within its lane of travel and drift into the turn lane. Trooper Achinger testified that his reasons for stopping the vehicle included "the choppy turn, the fact that he did flip me off, and then the weaving within the roadway and then when he drifted over into the continuous turn lane." On cross-examination, Trooper Achinger agreed that the weaving he observed was within the vehicle's lane of travel until the vehicle crossed into the turning lane. He testified that he did not observe Defendant speeding or violating any other traffic laws.
The dashboard video recording begins with Trooper Achinger's vehicle stopped at a red light. Our observation of the exhibit reveals the following. Trooper Achinger made a u-turn and began driving in the same direction as Defendant. Another vehicle was driving between Trooper Achinger and Defendant. Defendant's vehicle can be seen weaving one time within his lane, and Defendant's vehicle appeared to have touched the dividing line for the center turning lane. A short distance later, Defendant's vehicle is seen briefly crossing once over the ...