IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 14, 2013

STATE OF TENNESSEE v. DOUGLAS RAY MURRELL

Appeal from the Circuit Court for Hickman County

No. 12-5146CR Timothy Easter, Judge

No. M2013-01171-CCA-R3-CD - Filed December 18, 2013

The defendant, Douglas Ray Murrell, pled guilty to one count of driving a vehicle under the

influence of an intoxicant in violation of Tennessee Code Annotated section 55-10-401(a)(1)

(2010), a Class A misdemeanor; pled nolo contendere to one count of failure to maintain lane

in violation of Tennessee Code Annotated section 55-8-123, a Class C misdemeanor; and

pled guilty to one count of driving a vehicle with a blood alcohol concentration greater than

0.08 percent in violation of Tennessee Code Annotated section 55-10-401(a)(2), a Class A

misdemeanor. The trial court merged the two DUI convictions. In pleading guilty to the

DUI charges, the defendant reserved a certified question pursuant to Tennessee Rule of

Criminal Procedure 37, challenging the trial court’s conclusion that the initial stop of his

vehicle was supported by reasonable suspicion. After reviewing the record, we affirm the

judgment of the trial court.

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

Case Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, and CAMILLE R. MCMULLEN, JJ., joined.

Dale M. Quillen, Nashville, Tennessee, for the appellant, Douglas R. Murrell.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Senior Counsel; Kim

Helper, District Attorney General; and Kate Yeager, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION
FACTUAL AND PROCEDURAL HISTORY

Based on a traffic stop that occurred on May 20, 2012, the defendant was indicted on

one count of driving under the influence of an intoxicant, one count of failure to maintain

lane, and one count of driving with a blood alcohol concentration of 0.08 percent or greater.

The defendant moved to suppress all evidence which resulted from the stop, alleging that the

officer did not have reasonable suspicion to stop his vehicle.

At the hearing on the motion to suppress, Deputy Paul Wade testified that on May 20,

2012 he was working the 10:00 p.m. to 6:00 a.m. shift. At some point in the shift, Deputy

Wade turned onto Highway 100 behind a maroon vehicle driven by the defendant. He then

saw the vehicle cross the fog line three to four times. When the vehicle crossed the line, it

would “jerk” back into the lane. The vehicle did not cross the center line. Deputy Wade

turned on his blue lights and stopped the vehicle. When he went up to the car to speak with

the driver, he smelled an odor of alcohol coming from the vehicle. The defendant had

trouble locating his registration and his speech was slurred.

Deputy Wade asked the defendant if he had been drinking and the defendant

responded that he had had one or two beers. Deputy Wade then asked the defendant to

perform two field sobriety tests, the nine-step-walk-and-turn and the one-legged-stance. The

defendant did not perform satisfactorily on either. Deputy Wade again asked the defendant

how much he had had to drink, and the defendant responded that he had consumed six beers.

Deputy Wade arrested the defendant and the defendant agreed to take a Breathalyzer test.

Deputy Wade testified that the Breathalyzer machine needed a 20-minute period to set up

prior to testing. He testified he only recalled the defendant blowing into the machine once.

The result was 0.168. According to Deputy Wade, the machine would only attempt to get

a good reading three times, after which it would shut off.

On cross-examination, Deputy Wade acknowledged that he had previously testified

that the defendant crossed the fog line several times without testifying to a number. He did

not take notes on the field sobriety tests. Deputy Wade could not recall if he had previously

testified or been asked regarding the defendant’s statement he drank six beers, but he stated

it was in his report. He acknowledged the defendant did not endanger oncoming traffic and

testified the defendant drove “[o]ver the [fog] line itself.” He agreed that driving over the

line could be consistent with playing the radio. Deputy Wade testified that if an insufficient

amount is blown into the machine, the machine requires another twenty-minute clearing

period.

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The defendant testified that he blew into the Breathalyzer three times. On

cross-examination, he conceded that he did not dispute the fact that his blood alcohol level

was 0.168 percent.

The trial court concluded that the stop was based on specific and articulable facts

which supported reasonable suspicion that a crime was afoot. The trial court clarified that

it was the defendant’s “erratic” driving that justified the stop. The motion to suppress was

denied.

On the morning of the scheduled trial, the defendant elected to plead guilty to the

indictment, preserving the following certified question: “Whether the initial stop of the

defendant’s vehicle was supported by reasonable suspicion that a criminal offense had been

committed or was about to be committed.”

ANALYSIS

Under Tennessee Rule of Criminal Procedure 37, a defendant may enter a guilty plea

and nevertheless raise an issue on appeal under certain circumstances. The defendant may

appeal a certified question if there is no plea agreement but the defendant, with the consent

of the trial court, explicitly reserved the right to appeal a certified question of law that is

dispositive of the case, and if:

(i) the judgment of conviction or order reserving the certified

question that is filed before the notice of appeal is filed contains

a statement of the certified question of law that the defendant

reserved for appellate review;

(ii) the question of law as stated in the judgment or order

reserving the certified question identifies clearly the scope and

limits of the legal issue reserved;

Tenn. R. Crim. P. 37(b)(2)(A)(i)-(ii)-(iii)-(iv). A question is dispositive when the appellate

court is left solely with a choice to either affirm the trial court or dismiss the charges. State

v. Dailey, 235 S.W.3d 131, 134 (Tenn. 2007). The reviewing court must make an

independent determination regarding whether the question is dispositive. Id. at 135. Here,

the judgment of conviction contained a statement of the certified question; the statement

clearly identified the scope of the legal issue; the question was expressly reserved with the

consent of the State and trial court; and the judgment asserts that all parties and the court

believed the question dispositive. Because the legality of the stop is dispositive of the DUI

charges against the defendant, we conclude the question was properly reserved, and we

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proceed to review it.

A trial court’s findings of fact made in hearing a motion to suppress are binding on

the appellate court unless the record preponderates otherwise. State v. Talley, 307 S.W.3d

723, 728 (Tenn. 2010). “Questions of 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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing

party is entitled to the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that may be drawn therefrom. State v. Day, 263 S.W.3d 891, 900

(Tenn. 2008). The application of the law to the facts is reviewed de novo. State v. Carter,

16 S.W.3d 762, 765 (Tenn. 2000).

The Fourth Amendment of the United States Constitution and article I, section 7 of

the Tennessee Constitution prohibit unreasonable searches and seizures. An officer’s use of

flashing blue lights constitutes a seizure. Day, 263 S.W.3d at 902. A warrantless search or

seizure is presumed unreasonable unless it was conducted pursuant to an exception to the

warrant requirement. State v. Watson, 354 S.W.3d 324, 329 (Tenn. Crim. App. 2011).

Stopping a vehicle based on either probable cause or reasonable suspicion that a traffic

violation has occurred is an exception to the warrant requirement. Id. “Probable cause exists

where ‘the facts and circumstances within their [the officers’] knowledge, and of which they

had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of

reasonable caution in the belief that’ an offense has been or is being committed.” Day, 263

S.W.3d at 902 (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)).

Even when probable cause is not present, “[a] police officer may make an

investigatory stop of a motor vehicle when the officer has a reasonable suspicion, supported

by specific and articulable facts, that a criminal offense has been or is about to be

committed.” State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). Reasonable suspicion,

a lower threshold than probable cause, still requires more than an “inchoate and

unparticularized suspicion or ‘hunch.’” Day, 263 S.W.3d at 902 (quoting Terry v. Ohio, 392

U.S. 1, 27 (1968)). In determining the presence of reasonable suspicion, the court must

consider the totality of the circumstances, including objective observation; information

obtained from other officers or agencies; information obtained from citizens; the pattern of

operation of certain offenders; and the rational inferences and deductionsthat a trained police

officer may draw from the facts and circumstances known to him or her. Watkins, 827

S.W.2d at 294.

Tennessee Code Annotated section 55-8-123 states that, when a road is divided into

two or more clearly marked lanes for traffic, “[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

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has first ascertained that the movement can be made with safety.” T.C.A. § 55-8-123(1).

The defendant pled nolo contendere to Count 2, charging him with violation of this statute.

Deputy Wade testified at the suppression hearing that he observed the defendant’s vehicle

cross the fog line three or four times, jerking back into the lane after each time. The trial

court concluded that this behavior constituted erratic driving and that it gave rise to a

reasonable suspicion that a crime had been or was about to be committed.

We conclude that Deputy Wade was justified in stopping the defendant based on the

defendant’s erratic driving and the defendant’s violation of Tennessee Code Annotated

section 55-8-123(1). See State v. Vineyard, 958 S.W.2d 730, 736 (Tenn. 1997) (holding that

a violation of traffic laws constitutes probable cause for a stop); Watson, 354 S.W.3d at 331

(concluding that there was reasonable suspicion for a stop when police observed the

defendant leave a bar and cross the center line once and the fog line twice); see also State

v. Black, No. W2013-00249-CCA-R3-CD, 2013 Tenn. Crim. App. LEXIS 820, at *6 (Tenn.

Crim. App. Sept. 18, 2013) (finding probable cause for stop when officer observed vehicle

cross center line twice and fog line once); State v. McGee, No. E2011-01756-CCA-R3-CD,

2012 WL 4017776, at *4 (Tenn. Crim. App. Sept. 13, 2012) (concluding that stop was

justified where vehicle had been reported as moving erratically and where defendant changed

lanes without signaling and crossed fog line twice); State v. Hunt, No. M2009-01169-CCAR3-CD, 2010 WL 2977882, at *5 (Tenn. Crim. App.July 30, 2010) (upholding seizure where

defendant’s vehicle moved in and out of his lane and crossed white stripe into median); State

v. Allen, No. 01C01-9707-CC-00272, 1998 WL 458177, at *3 (Tenn. Crim. App. Aug. 7,

1998) (upholding seizure where out-of-state vehicle crossed the fog line three times at night).

But cf. State v. Binette, 33 S.W.3d 215, 219 (Tenn. 2000) (finding stop of vehicle which was

weaving slightly within its lane and which touched the center line twice was not justified);

State v. Smith, 21 S.W.3d 251, 258 (Tenn. Crim. App. 1999) (holding that stop was illegal

where defendant changed lanes without signaling and drove on white line but there was no

evidence of erratic driving, weaving, or hazard to other vehicles); State v. Levitt, 73 S.W.3d

159, 174 (Tenn. Crim. App. 2001) (concluding that, under totality of circumstances, driver’s

action in driving slowly on the shoulder for a brief interval to pass what he reasonably

thought was the scene of an accident did not violate T.C.A. § 55-8-123(1)). Here, the

defendant was traveling on the highway. He crossed the fog line and then jerked back into

his lane, without apparent cause, three times during the night of May 20, 2012. Because the

stop was justified by reasonable suspicion that a crime had been or was about to be

committed, the trial court properly denied the defendant’s motion to suppress.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed. However, we

remand for correction of the judgment sheet in count two, which incorrectly shows the

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defendant sentenced to probation for thirty months rather than thirty days.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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