### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE September 26,

2000 Session
STATE OF TENNESSEE v. CHRIS A. JEFFERSON Direct Appeal from the Criminal Court for Sullivan County

No. S42,598 Phyllis H. Miller, Judge

No. E2000-00429-CCA-R3-CD December 8, 2000
Chris A. Jefferson appeals a certified question of law regarding a police officer ’s stop of him which resultedin his arrest for driving under the influence. Because we agre e with the trial court that reasonable susp

icion supported by

specific and articulable facts existed for the stop, we affirm the judgment of the tr

ial court. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court Affirme

d.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in whichJ OSEPH M. T IPTON and J ERRY L. S MITH , JJ., joined.
Thomas McKinney, Jr

. and Clyde L

. Tootle, Kingspo

rt, Tenne ssee, for the appellant, Chris A. Jefferson.
Paul G. Summers, Attorney General & Reporter, Elizabeth B. Marney, As sistant Attorney General, H. Greeley We

lls, Jr., District Atto

rney Gene

ral, J. Lewis C

om bs, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant, Chris

A. Jefferson, appeals a certified question reserved pursuant to his guilty plea to the crime of driving under the influence. Jeffer son claims that

the arresting officer’s observati on that Je fferson was w eaving wi thin his lane of tra ffic did not amount

to reasonable

suspicion that a crime had been or was about to be committed. Therefore, h e reaso ns, the officer’s stop of him was improper, and ultimately, his conviction cannot stand. However, we hold that the trial cour

t correctly determined that the stop was predicated upon reasonable suspicion supported by

specific and ar

ticulable facts.

Therefore, we

affirm the judg

ment of the trial c

ourt.
The evi denc e adduced at the suppression hearing consisted solely of the testimony of Officer Gary

Medilin of the Sulliva

n County Sheri

ff’s Departmen

t. In the early morning hours of March 5, 1999, Officer Medilin was on the road when he went through a “small ball of traffic”-2-

and found the defendant at the front of the traffic. He immediately noticed that the defendant was “cutting a ‘z’ continuously

” in his lane of tra

vel. The defenda

nt was traveling

back and forth

from the lane divider to the line on the shoulder, although he did not leave his own lane of the road. The officer followed the defendant for two to three-tenths of a mile and observed the defendant weaving the entire time. The o

fficer testifie

d that it a ppeared a s if the defendant was negotiating a slalom course. The officer testified that the d efend ant’s driving was very much out of the ordinary and erratic. Further, according to the officer, if the defendant had encounter ed other traffi c, he would have con side red the defendant’s driving to be reckless. Officer Medilin observed nothing on the roadway or about the defendant’s vehicle which would explain the manner in which the car was traveling.
The trial court found that these facts created reasonable suspicion that criminal activity had been or was about to be committed and therefore denied the mot ion to suppress. Thereafter, the defendant pleaded guilty to driving unde r the influence but reserved the stop issue as a certified question of law. SeeTenn. R. Crim. P. 37(b)(2)(i).

In reviewing suppression

issues which required the trial court to consider issues of cred ibi lit y, the proper standard is the preponderance of the evidence standard. State v. Guy Binette ,

—S.W.3d —, No. E1999-0 0236-SC-R11-CD, slip

op. at 2-3 (Tenn . Oct. 5, 2000); see also State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of credibility, the weight and value of the evidence, and the resolution of conflicting evidence are matters entrusted to the trial judge, and this court must uphold

a trial court's findings of fact unless the evidence in the record preponderates against them. Odom , 928 S.W.2d at 23; see also Tenn. R. App. P. 13(d). However, the application of the la w to the facts is

a question which a

n appellate cour

t reviews de novo

. Beare Co. v. Tennessee Dept. of Revenue , 858 S.W.2d 90 6, 907 (Tenn. 1993) . We consider the is sue in this appeal with these standards in mind.

An autom obile stop constitute s a "seizure" wi

thin the meaning o

f both the Fourth Amendment

to the United States Constitution and Article 1, Section 7 of the Tennessee Constitution. See Michigan Dept. o

f State Police v. Sitz , 496 U.S. 444, 450, 110 S. Ct. 2481, 2485 (1990); State v. Pulley , 863 S.W.2d 29, 30 (Tenn. 1993). Probable c ause is not required for an investigative stop. Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); State v. Coleman , 791 S.W.2d 504, 505 (Tenn. 1989). In Terry , the Court held that a "stop and frisk"

is constitutionally

permissible “where a po lic e officer obser

ves unusual conduc

t which leads him re

asonably to c

onclude in light of

his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armedand dangerous . . . .” Terry , 3 92 U.S. at 30, 88 S. Ct. at 1884. Generally, the police are entitled to stop a car brie fly for inve

sti gative p urposes if they have a reasonable suspicion, based upon specific and articulable facts, that an offense is being or is about to be committed. See Delaware v. Prouse , 440 U.S. 648, 663, 99 S. Ct. 1391, 1401 (1979) ; State v. Watkins , 827 S.W.2d 293, 2 95 (T enn. 1992). A court must consider the totality of the circumstances when evaluating whether a police officer's reasonable suspicion is supported by specific and

articulable facts. State v. Yeargan , 958 S.W.2d 626, 632 (Tenn. 1997).1 The significant rule of law of Guy Bine tte is the announcement of a de novo standar d of appell

ate revi ew for evidence that does no t involve issues o f credibility. See Guy Bine tte , slip op. at 3. Although that standard of review does not apply to t

he case at bar , that case is other wise instructive b ecause of its fac tual similarity.
2 The supreme court found that officer’s s tatements about his obser vations , made on the videotape, conflict ed with the visual

content s of the videotape

on the ques

tion of the ext ent of the weaving. Guy Bine tte , slip op. at 5. Thus, upon de novo review, see supra n.1, the court d iscounted th e officer’s statem ents. See Guy Bine tte , sli p op. at 5. -3- In the present case

, the defendant c

ontends that no rea

sonable suspicion could exist where the only

evidence that he

was committing the

criminal offense

of driving under the influence was the officer’s observation that he was wea ving within hi s lane of travel. This is not the first “weaving within the lane” c ase toco me before the Tennessee appellate courts. In many cases, a defendant’s weaving within the lane has been but one of the facts considered in assessing whether reasonable

suspicion existed. See, e.g. , Sta te v . Fl oyd Lee Williamson , No. 02C01-9803-CC-00085 (Tenn. Crim. App., Jackson, Apr. 1, 1999) (of

ficer alerted t

o suspicious vehicl

e complaint,followed the defendant’s ve

hicle for approxima

tely two miles , observed the vehicle drift back and forth within the lane, cross the center line at least once, and d

rive at slightly

more than one-half the speed limit); State v. Stuart Allen Jenkins , No. 01C01-9712-CR-00590 (Tenn. Crim. App., Nashville, Dec. 21, 1998) (trooper located the defendant’s vehicle after being notified of a

suspected drunk driver and observed the vehicle

for approximately one mile, and saw it “weaving excessively ” within its lane of travel). However, our appellate courts have also considered “weaving within the lane” c

ases in which that evidence was the only basis for the officer’s stop.

Rec ent ly, the supreme court decided State v. Guy Binette , —S.W.3d —, No. E1998- 00236-SC-R11-CD

(Tenn. Oct. 5, 2000). 1 That case is relevant both factually and legally

. In Guy Binette , an officer stopped the defendant afte

r observing him w

eaving within his

lane of travel. Id. , slip op. at 5. Up on de novo review of the vid eotape taken fr

om the officer’s

car during his observations preceding the stop, the supreme court found that the defen dant’s movement was entirely within the defendant’s own lane of travel and was not exaggerated. Id. The key, sa id the court, is not “[t]he number of times that a vehicle touches the center line or drifts within a lane. . . . Rather

. . . a court must consi

der the totality

of the circumstan

ces in determining

whether reaso

nabl e suspicion was present at the time a stop was ini tiate d.” Id. The court observed that rare was the driver who could travel in a perfe c t course on the roa d, and allowing a

finding of reas

onable suspicion based upon only minor imperfectionsin driving would e ssentially c

reate a “stop at

will” standardwhich would run af oul of the guara

ntees of the Four

th Amendment. I d., sl ip op. at 5-6 . In applying the law to the case before it, the supreme court not

ed that the defen

dant’s movement wi

thin his lane “was not pronounced, and therefore di d not give rise to reasonable suspicion that he was under the influence of an

intoxicant.” 2 Id. , slip op. at 6. As such, the court reversed the defendant’s conviction and dismissed the charge. Id.

In State v. Don Palmer Black , No. 03C01 -9812-CR-00424 (Tenn. Crim. App., Knoxville, Dec. 29, 1999), we upheld the trial court’s determination that reasonable suspicion for a traffic stop existed where the arresting officer observed the defendant weaving within his lane and swerving to the right twice, almost hitting the curb of the roadway. The arresting officer described-4-

the defendant’s actions as “driving all over tha t one lane,” a comment we construed to be synonymous

with weaving excessively. I d., slip o p. at 8. Furt hermore, we c ontrasted erratic dri ving, which gives rise to reasonable suspicion for a traffic stop, with mere “ina ttentio n to detail and imperfection,” which does not. Id. , slip op. at 9.

Fin all y, although not

a “w eaving within the lane” case, consideration of State v. Smith , 21 S.W.3d 251 (Tenn. Crim. App. 199 9) is profitable. In that case, this court reversed the trial court’s determin

ation of reasona

ble suspicion base

d upon specific

andarticulable facts where a state trooper

stopped th e defendant’ s vehicle af ter observi ng the vehicl e twice change lanes while passing other vehicles w

ithout signaling

and driving on the

white line near the edge of t he ro adw ay. Id. at 258. The court first rejected the lane changes a

s supporting rea

sonable suspicion because the evidence did not support a violation of the traffic laws. Id. at 257. In considering whether driving on the white line supported a finding of reasonable suspicion, the court contrasted prior decisions in which there had b

een evidence of

“erratic drivin

g or weaving w

hil e driving” and

held that reasonable

suspicion could not be supported absent evi den ce t he d efen dan t “w as d riv ing e rrat ica lly, weaving, or o therwise ca using a hazard to other vehicles.” Id. at 258. The evidence of Defendant Smith’s driving did

not meet that test. A

ccordingly

, the stop violated c

onstitutional princ

iples.
In the present case, the defendant was described as “cutting a ‘z ’ con tin uou sly” from the dotted center

line to the shoulder fog line during the entire two to three-tenths of a mile that the arresting officer

observed him. Although confined to one lane, the defendant’s driving was erratic, andit appeared as if he was n egotiating a slalom course. The officer saw nothing in the roadway or about the defendant’s vehicle which might explain the unusual course taken. These facts, whic h were unco ntroverted at the suppression hearing, essentially constitute the “totality of the circumstances”

to be considered

in this case. See Guy Binette , slip op. at 5. The officer’s testimony supports a conclusion that the defendant’s driving was unusual, volatile an d hazardous. In other words, it was the type of erratic and pronounced driving which for ms the basis for r easonabl e suspicion for a traffic stop. See id. , slip op. at 6; Smith , 21 S.W.3d at 258; Don Palmer Black , slip op. at 9.
For

this reason, we conclude that the trial court correctly denied the de fenda nt’ s motion to suppress. The judgment of the trial court is affirmed.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE