IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 15, 2013 Session

STATE OF TENNESSEE v. OLIVIA KATHLEEN EPPS 

Appeal from the Circuit Court for Rutherford County

No. M-67197 David M. Bragg, Judge

No. M2012-01104-CCA-R3-CD - Filed April 2, 2013

The Defendant, Olivia Kathleen Epps, pleaded guilty to first offense driving under the

influence, a Class A misdemeanor. See T.C.A. § 55-1-401 (2010). She was sentenced as a

Range I, standard offender to eleven months and twenty-nine days, all suspended but fortyeight hours. The Defendant’s plea agreement reserved a certified question of law regarding

the legality of the traffic stop that led to her arrest. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., J., and PAUL G. SUMMERS, SR.J., joined.

Mark Christopher Scruggs, Nashville, Tennessee, for the appellant, Olivia Kathleen Epps.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark Bryan Thornton, Assistant

Attorney General; William C. Whitesell, Jr., District Attorney General; and Nathan S.

Nichols, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

This case relates to a traffic stop on May 26, 2011, during which the Defendant was

arrested for driving under the influence. After she was indicted, she filed a motion to

suppress, alleging that the officer who stopped her lacked reasonable suspicion or probable

cause justifying the stop and that the officer’s request for a blood test was unsupported by

the field sobriety tests.

At the suppression hearing, no witnesses were presented, but the trial court received

as exhibitsthe transcript of the preliminary hearing and the video recording from the officer’s

car. At the preliminary hearing, Murfreesboro Police Officer Kenneth White testified that
he first saw the front wheels of the Defendant’s car stop past the “stop bar” at the intersection

of Northwest Broad and West Moore around 2:42 a.m. and that stopping past the bar was

“technically running a light.” He said that he continued to follow the Defendant, that the

Defendant’s car crossed the center line twice, and that the car crossed the right fog line twice

and onto the shoulder of the road. He said the Defendant’s car crossed into the adjacent lane

of traffic, which was traveling in the same direction. He said he initiated the traffic stop.

Officer White testified that after he approached the Defendant’s car, he asked for her

driver’s license and that he recalled the Defendant’s “fumbling for it.” He said that he

smelled the odor of an intoxicant coming from the Defendant and that the Defendant had

glassy, bloodshot eyes and slurred speech. He said he requested she get out of the car and

had her perform a series of field sobriety tests. He said that although the Defendant

satisfactorily completed some of the tests, he concluded that she was too impaired to drive.

He said that he requested the Defendant to submit to a blood test, that the Defendant agreed

to the test, and that the results showed a blood alcohol concentration of 0.18.

On cross-examination, Officer White testified that the video equipment inside his

police cruiser activated when he turned on his blue lights, that the recordings included the

thirty seconds preceding his turning on his lights, and that the Defendant’s driving should

have been on the recording. He said he asked the Defendant to complete the one-leg stand

test and walk and turn test. He recalled that the ground was flat and that an imaginary line

was used during the walk and turn test. He denied the walk and turn test required the use of

a real line. He said the Defendant started the walk and turn test too early, missed heel to toe

on the first nine steps, missed heel to toe on the second nine steps, stepped off the line twice,

and “rolled” her arms on the first nine steps. He said that during the one-leg stand test, the

Defendant swayed, raised her arms, hopped on one leg, and placed her foot on the ground

prematurely.

The video recording from Officer White’s police cruiser shows that it was raining at

the time the officer saw the Defendant’s car. The recording fails to show the Defendant’s

stopping past the stop bar and her car crossing the center line twice but shows her car

crossing the fog line once.

With regard to the field sobriety tests, the recording skips and is difficult to view

before the Defendant leaves her car. The recording shows, though, the Defendant swaying

slightly during two field sobriety tests. The recording ends abruptly before the Defendant

performed the one-leg stand test and the walk and turn test.

The trial court denied the Defendant’s motion to suppress. The court credited Officer

White’s preliminary hearing testimony that he saw a car stop past the stop bar at an

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intersection and that he saw the car cross the center line twice and the fog line twice, causing

the officer to initiate a traffic stop. The court credited the officer’s testimony, although the

video recording did not confirm everything the officer witnessed. The court found that

Officer White had reasonable suspicion to stop the Defendant’s car based on his

observations. The court found that the Defendant “fumbled” when retrieving her driver’s

license and that the officer smelled alcohol coming from the Defendant. The court found that

the Defendant had glassy, bloodshot eyes and slurred speech. The court found that based on

the Defendant’s performance during the field sobriety tests, the officer had reasonable

grounds to request she submit to a blood alcohol concentration test.

At the guilty plea hearing, Officer White testified that he saw the Defendant’s car stop

past the stop bar at the intersection of Northwest Broad and West Northfield. He said the

Defendant’s car was not in the middle of the intersection but was stopped past the bar. He

said that he followed the Defendant, that the Defendant’s car crossed the center line twice

and the right fog line twice, and that he initiated a traffic stop.

Officer White testified that although the camera inside his police cruiser began

recording thirty seconds before he turned on his blue lights, the Defendant’s stopping past

the stop bar and some of the weaving were not recorded. He stated that after he stopped the

Defendant, she “fumbled” to give him her driver’s license, had an odor of alcohol, and had

slurred speech. He said the Defendant performed several field sobriety tests. He said she

began the alphabet test too soon and swayed. He said the Defendant did “okay” on the

alphabet test, the counting test, and the five-finger count test. He said the Defendant began

too soon on the walk and turn test, missed heel to toe, stepped off the line, and raised her

arms on the first set of steps. He stated that on the one-leg stand test, she swayed on one leg,

raised her arms, hopped on one leg, and placed her foot on the ground prematurely. He said

that based on her performance on the field sobriety tests, he concluded that the Defendant

was too impaired to drive. He arrested the Defendant and requested she submit to a blood

test.

On cross-examination, Officer White testified that the preliminary hearing transcript

incorrectly stated that he first saw the Defendant on West Moore Street. He said it must have

been a typographical error made by the court reporter because no such street existed or

intersected with Northwest Broad. He said the front two tires of the Defendant’s car stopped

past the stop bar and agreed state law required stopping at the bar. He said he had written

traffic citations for stopping past the stop bar but could not recall how many.

Officer White testified that the video recording did not show the Defendant’s car

crossing the center line, although the recording showed her car crossing the fog line. He

agreed seventy-five percent of her driving was recorded. He said that although the

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Defendant “fumbled” giving him her license, the recording did not show it because she was

inside her car. He denied using a line on the roadway during the walk and turn test and said

the Defendant used “her imaginary line.”

William Epps, the Defendant’s father, testified that based upon his measurements,

the distance between the intersections of Northwest Broad and West Northfield and

Northwest Broad and Thompson Lane was seven-tenths of one mile. He said the recording

began at four-tenths of one mile. He said that the recording showed that it took the

Defendant about ten seconds to give her driver’s license to the officer and that she answered

questions while retrieving it. He said the Defendant did not have slurred speech.

On May 4, 2012, the trial court filed an order setting forth that the plea was subject

to the following dispositive, certified question of law:

Whether the stop of the Defendant prior to her arrest on or about May 26,

2011, was based upon a reasonable suspicion that she was engaged in some

type of unlawful activity justifying said stop (in violation of Defendant’srights

pursuant to the 4 and 14 Amendments to the U.S. Constitution and Article

th th

I, Section VII of the Tennessee Constitution) and whether, subsequent to said

stop, the officer gathered additional evidence giving him reasonable grounds

to request the Defendant submit to [a] blood test to determine whether she was

under the influence of any substance as required by T.C.A. § 55-10-406(a)(1).

As a preliminary matter, the Defendant objects to this court’s considering Officer

White’s testimony at the guilty plea hearing. We conclude that our considering the additional

testimony of the arresting officer is proper. In reviewing a trial court’s ruling on a motion

to suppress, this court is permitted to consider evidence presented at the trial and at the

suppression hearing. See State v. Williamson, 368 S.W.3d 468, 473 (Tenn. 2012). When

a defendant pleads guilty, the guilty plea hearing is the equivalent of the trial. Wlodarz v.

State, 361 S.W.3d 490, 503 (Tenn. 2012). We also note that the Defendant did not object to

the officer’s testifying and presented a favorable defense witness at the guilty plea hearing.

This court may consider the officer’s testimony at the guilty plea hearing.

The Defendant contends that the trial court erred by denying her motion to suppress

because the video recording fails to support Officer White’s preliminary hearing testimony

and because the video does not show evidence justifying the stop. The State contends that

the trial court properly denied the motion to suppress because reasonable suspicion justified

the traffic stop. We agree with the State.

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A trial court’sfactual findings on a motion to suppress are conclusive on appeal unless

the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);

State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the

“credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts

in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928

S.W.2d at 23. The prevailing party is entitled to the strongest legitimate view of the evidence

and all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521

(Tenn. 2001). The application of the law to the facts as determined by the trial court is a

question of law, which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626,

629 (Tenn. 1997).

The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures, and “‘article 1,section 7 [of the Tennessee Constitution]

is identical in intent and purpose with the Fourth Amendment.’” State v. Downey, 945

S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968)).

The analysis of any warrantless search must begin with the proposition that such searches are

per se unreasonable under the Fourth Amendment to the United States Constitution and

article 1,section 7 of the Tennessee Constitution. This principle against warrantlesssearches

is subject only to a few specifically established and well-delineated exceptions. See Katz v.

United States, 389 U.S. 347, 357 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim.

App. 1980). Evidence discovered as a result of a warrantless search or seizure is subject to

suppression unless the State establishes that the search or seizure was conducted pursuant to

one of the narrowly defined exceptions to the warrant requirement. State v. Binette, 33

S.W.3d 215, 218 (Tenn. 2000).

An exception to the warrant requirement exists when a police officer conducts an

investigatory stop based on a reasonable suspicion that a criminal offense has been or is

about to be committed. Terry v. Ohio, 392 U.S. 1, 21 (1968); Binette, 33 S.W.3d at 218.

Reasonable suspicion is “a particularized and objective basis for suspecting the subject of a

stop of criminal activity[.]” Binette, 33 S.W.3d at 218 (citing Ornelas v. United States, 517

U.S. 690, 696 (1996)). Reasonable suspicion is determined based upon the totality of the

circumstances of the encounter. Id. (citing Alabama v. White, 496 U.S. 325, 330 (1990)).

The police may stop a vehicle if they have an “articulable and reasonable suspicion” that the

vehicle or its occupants are subject to seizure for violation of the law. See Delaware v.

Prouse, 440 U.S. 648, 663 (1979); State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). An

officer’s subjective intention for stopping a vehicle is irrelevant, as long as independent

grounds exist for the detention. See Whren v. United States, 517 U.S. 806 (1996); State v.

Vineyard, 958 S.W.2d 730 (Tenn. 1997).

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When a traffic stop isinitiated based on reasonable suspicion, a resulting investigation

is reviewed under the framework established in Terry v. Ohio. See United States v.

Brignoni-Ponce, 422 U.S. 873 (1975). Such investigations require that an officer’s actions

must be “reasonably related in scope to the circumstances which justified the interference in

the first place.” Terry, 392 U.S. at 20. The detention “must be temporary and last no longer

than necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500

(1983); see State v. England, 19 S.W.3d 762, 767-68 (Tenn. 2000). Moreover, the officer

should employ the least intrusive means reasonably available to investigate his or her

suspicions in a short period of time. Royer, 460 U.S. at 500.

We conclude that the evidence does not preponderate against the trial court’s

conclusion that reasonable suspicion justified the traffic stop. The officer’s credited

testimony shows that he saw the Defendant’s car stop past the stop bar at an intersection,

which caught the officer’s attention. The officer saw the car cross the center line twice and

the fog line twice, causing him to initiate a traffic stop. Although the video recording only

shows the car crossing the fog line once, we note that the recording equipment was not

activated the entire time the officer followed the Defendant. The officer testified at the guilty

plea hearing that the camera only recorded his following the Defendant for about thirty

seconds and that it did not record the Defendant’s stopping past the stop bar and the weaving.

The officer testified that he first saw the Defendant stop past the stop bar when making a

right-hand turn. The officer then saw the Defendant cross the center and fog lines. In any

event, the trial court credited the officer’s testimony that the Defendant’s car crossed the

center line twice and the fog line twice. See Odom, 928 S.W.2d at 23. Although the

recording does not confirm the officer’s testimony in its entirety, it does not contradict it.

The Defendant also contends that reasonable grounds did not exist to justify the

officer’s requesting a blood test and argues that the video recording does not support the

officer’s testimony. The State responds that reasonable grounds existed. We agree with the

State.

Although the video recording provides little evidence about the Defendant’s

performance on the various field sobriety tests, Officer White testified at the preliminary

hearing that the Defendant “fumbled” when retrieving her driver’s license and that he

smelled alcohol coming from the Defendant. The court found that the Defendant had glassy,

bloodshot eyes and slurred speech. The officer testified that during the walk and turn test,

the Defendant began the test too early, missed heel to toe on the first nine steps, missed heel

to toe on the second nine steps, stepped off the line twice, and “rolled” her arms on the first

nine steps. He said that during the one-leg stand test, the Defendant swayed, raised her arms,

hopped on one leg, and placed her foot on the ground prematurely. The officer’s testimony

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is uncontradicted. We conclude that nothing in the record preponderates against the trial

court’s finding that the officer had reasonable grounds to request a blood test.

In consideration of the foregoing and the record as a whole, the judgment of the

trial court is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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