United States District Court, E.D. Tennessee, Greeneville Division
REPORT AND RECOMMENDATION
Clifton L. Corker United States Magistrate Judge.
Julius Leon Ditto (“Ditto”), has filed a Motion
to Suppress [Doc. 19). The United States filed a Response in
Opposition [Doc. 22]. This matter is before the Court
pursuant to 28 U.S.C. 636(b) and the standing orders of the
District Court for a Report and Recommendation.
Tuesday, March 19, 2019, the Court conducted an evidentiary
hearing on Defendant's motion. Present at the hearing
were Defendant, his counsel, Donald E. Spurrell, Esq., and
Assistant United States Attorney Thomas McCauley, Esq.
Testifying at the hearing was Officer Trevor Salyer. This
matter is now ripe for resolution. For the reasons stated
herein, the undersigned RECOMMENDS the Motion to Suppress be
August 15, 2018, a federal grand jury returned an indictment
against Ditto, charging him with being a felon in possession
of a weapon, specifically a DMPS Panther, .223 caliber AR-15
rifle, in violation of 18 U.S.C. § 922(g)(1) [Doc. 1].
On December 19, 2018, Ditto filed a Motion to Suppress [Doc.
19], arguing that the traffic stop violated his Fourth
Amendment rights. The United States responded [Doc. 22] that
the officer had sufficient probable cause to effect the
traffic stop. The hearing on this motion was originally set
for January 9, 2019 but was continued until March 19, 2019
based on Defendant's motion to continue [Doc. 23].
Findings of Fact
4, 2018, Officers Trevor Salyer and Dustin Johnson, officers
with the Elizabethton Police Department Vice Unit, were
surveilling a neighborhood off of Broad Street in
Elizabethton, Tennessee. The officers observed a silver BMW
sedan traveling toward them on Broad Street toward the
intersection with West Elk Avenue. This intersection involves
a Y-type interchange, with Broad Street merging into West
Elk, necessitating multiple sets of traffic lights to control
traffic. As a car of interest coming from the surveilled
location, the officers chose to follow the vehicle in hopes
of investigating it further. When the BMW reached the
intersection, the officers observed it make a wide turn from
Broad Street onto West Elk, with the left-side tires of the
vehicle crossing the double yellow lines on West Elk before
correcting back within the right lane. This was the first
violation of Tennessee Code Annotated § 55-8-123.
officers continued to follow the BMW down West Elk. Less than
a mile down the road, they observed the car drift again
toward the center yellow lines, this time with the left
wheels driving directly on the center lines. This was the
second violation. Shortly after the BMW corrected back into
its lane, the officers observed the car again driving over
the center yellow lines. See Exhibit 1, Timestamp
08:35:10. This is the third violation. At this point, the
officers effected a traffic stop on the BMW for a violation
of Tenn. Code Ann. § 55-8-123, a failure to maintain
lane. After making contact with the driver, Ditto, the
officers learned that he had an outstanding warrant from the
United States Marshals Service for a violation of probation.
As Officer Salyer placed Ditto under arrest, he observed a
rifle round fall out of Ditto's lap, leading Officer
Salyer to inquire whether there were any weapons in the
vehicle. Ditto advised that there was a gun in the back seat.
Upon a search of the vehicle, the officers found an AR-15
rifle with a loaded magazine and a box of ammunition in the
argues that the actions that the officers observed,
specifically the three occurrences of driving on or over the
center yellow lines, did not amount to probable cause to
effect the traffic stop and that the gun and ammunition found
as a result should be suppressed. The United States responded
that the officers had probable cause to effect the stop under
the plain language of the statute as interpreted by the
Tennessee state court and the Sixth Circuit.
undisputed that an officer may effect a traffic stop when he
has “probable cause to believe that a traffic violation
has occurred.” Whren v. United States, 517
U.S. 806, 810 (1996). This results in a “fact-dependent
determination [that] is made from the totality of the
circumstances and includes a realistic assessment of the
situation from a law enforcement officer's
perspective.” United States v. Warfield, 727
Fed.Appx. 182, 186 (6th Cir. 2018) (quoting United States
v. Ferguson, 8 F.3d 385, 391-92 (6th Cir. 1993))
(internal quotation marks omitted). Therefore, “the
inquiry for purposes of determining the existence of probable
cause does not require that the Court affirmatively find that
defendants violated a traffic law.” United States
v. Howard, No. 3:18-CR-29-TAV-HBG, 2018 WL 6061439, at
*3 (E.D.Tenn. 2018). In this case, officers relied on Tenn.
Code Ann. § 55-8-123, which in part 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
(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;…
interpreting this statute, the Tennessee Supreme Court has
recently noted that “[c]learly, the primary purpose of
Section 123(1) is to enhance highway safety. Just as clearly,
a motorist must be allowed to leave her lane of travel in
order to avoid obstructions or other dangers.”
State v. Smith, 484 S.W.3d 393, 407 (Tenn. 2016).
That Court further agreed with the Ohio Court of Appeals'
observations on a similar statute: “Common sense
dictates that the statute is designed to keep travelers, both
in vehicles and pedestrians, safe.” Id. This
focus on public safety and the plain language of the statutes
led that Court to hold “that Section 123(1) is 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…Thus, even minor lane excursions may ...