### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec em be r 7, 200 4

STA TE OF TEN NES SEE v. JON SEILE R

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 03-01811 Ar thur T. Benn ett , Judge

No. W2004-00702-C CA-R 3-CD - F iled Dece m ber 30, 2004

The De fenda nt, J on Seiler, pled g uiltyto driving unde r the i n fl u en ce of an intoxi cant ( “DUI ”), second of fense . Pursuant to Tennesse e Rule of Criminal Proce dure 37, the Def endant r eser ved as

a c e rt if ie d q ue sti on of

la w the iss ue of

wh e the r the tr ia l c ou rt

e rre d w he n it

de nie d h is m oti on to

su pp re ss. F ind ing no e rr or , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which D AVI D H. W ELLES and T H O M A S T. W O O D A LL , J J ., joined.

L eslie I . Ba llin and Gray

W. Bartlett, Memphis, Tenne ssee, f or the a ppellant, J on Seiler.

Paul G

. S umm e rs , A tto rn e y Ge ne ra l a ndRe po rt e r; John H. B le ds oe , A ssi sta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and B rooks Yelve rton, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION I. F acts

This case arises f

rom the Defenda nt’s arr est and subsequent conviction for DUI that occur

red

on Ju l y 2 1
, 2 0 0 2

. P r i o r t o e n t e r i n g a g u i l t y p l e a , t h e D e f e n d a n t f i l e d a m o t i o n t o s up pr e ss h is statements contending that they wer e g iven to police af

ter a n illega l searc h and seizure. The trial court de nied the De fenda n t ’s m o t i on, and the De fenda nt pled g uiltyto DUI , second of fense
, re se rv ing a

c e rt if ie d q ue sti onof

la w r e g ard ing whe th er the mot ion to s up pr e ss w a s impr op e rl y denied. At the he aring on the D e fenda nt’s motion to s uppress, the f ollowing e vidence was pre sented.

A. C. Br own, an office r wit h the Memphis Police Depa rtment, testified that he ha d rec eived DUI training while employ ed with the police de partment. He said that, from this training, he learned that some indicators of pote ntial DUI offe nders a

re: erratic swerving ; inability to drive in one la ne;
ve e ri ng ov e r i nto on c omi ng tr a ff ic ; ma kin g wi de turns ; a nddrivi ng wi tho ut the be ne fi t of he a dli g hts

.-2-

The off icer testified that, on J uly

21, 2002, at appr ox imately 3:35 a.m. he wa s called to the sce ne of

an ac cident to a ssist anothe r office r. Offic er Br own said that, while at the a ccide nt scene , he noticed

a pick-up truck trave ling at what he “per ceive d to be a high rate of spee d” towar d the ac cident ar ea. He sa id that, a s th e pic k- up truc k g ot c los e r, he no tic e d that the ve hic le ’s drive r’ s sid e tir e s w e re in

on e la ne a nd the pa sse ng e r sid e tir e s we re in the oth e r la ne , a ndthe ve hic le wa s “ str a dd lin g the wh ite dotted line.” The office r said that this was a violation of c ity and state la w.

Offic er B rown testified that he then g ot into his p o l i ce car and turne d behind the pick- up truck a s the pick-up truc k stopped at a tra ffic lig ht. The off icer said that t h e driver of

the pick-up truck still had the ca

r positioned wi t h “the driver side whe els of the ve hicle in the ce nter lane and the passeng er side w heels of the vehicle in the rig ht la ne.” The office r said that he stopped the pic kup truck, a nd he appr oache d the driver ’s side window. The office r said that he shined his flashlig ht into the truck, and there was no response from the driver, w ho was the D efe ndant. The of fice r then tapped on the window with the end of hi s flashlig ht, and the Def endant still did not respond. The of fi c e r t app e d o n the wi nd ow a g a in, a ndthe De fe nd a nt r oll e d h is w ind ow do wn . T he of fi c e r s a id that h e th e n a s k e d th e D e f e n d a n t f o r h is d r iv e r ’ s li c e n s e , a n d
, a s th e D e f e n d a n t b e g a n ta lkin g , the office r could smell alcohol from inside the truck. He sa id that he noticed that the D efe ndant’s ey es
wer e re d and watery , and the De fenda nt’s speec h was “ somewhat slurre d.”

Th e of fi c e r a sk e d the De fe nd a nt to e xit his truc k a nd to su bmi t to thr e e fi e ld s ob ri e ty te sts

. Offic er B rown testified tha t t h e Defenda nt “see med to be somewhat unsteady on [hi s] feet” a nd “used the vehicle f

or support” w hen he f

irst exi ted the truc k. The off icer said that he re quested that the Def endant r ecite the Eng lish alph ab et from A to Z , and the De fenda nt “hesitated on se vera l le tte rs a nd

. . . u po n a

pp ro a c hin g the le tte r ‘ Q’ , he we nt fr om the le tte r ‘Q ’, sk ipp ing se ve ra l le tte rs , to the letter ‘V ’.” Offic er Br own said that he also reque sted that the De fenda nt stand with either foot off of the g round, appr ox imately six inches in fr ont of hi m, looking down at hi s foot while doing so, and to count fr om 1001 to 1030. The offic er sa id that, during this test, the Defe ndant place d his foot on the g round seve ral times. The of fice r testified that the Def endant a lso failed a “ walk and turn” test by s t u m b l i n g fr o m a standing position. Officer Br own said that, fr om the Def endant’ s perf ormanc e on these tests, he believe d that the Def endant wa s under the inf

luence of alc ohol.

On cr oss-examination, the of fice r testified that all of the fa ctors that led him to believe that the De fe nd a nt w a s in toxic a te d o c c ur re d af te r his ini tia l stop of the De fe nd a nt. Th e of fi c e r s a id tha t,

a t th e tim e of

the inc ide nt, the tr a ff

ic in the are a wa s lig ht. Th e of fi c e r t e sti fi e d th a t, w he n h e fi rs t observe d the Def

endant’ s truck, the truc k was a pproxi mately

one quarter of a

mile away

from the office r. Offic er Br own said that it took the Defe ndant appr ox imately five to six seconds to appr oach the of fi c e r, a nd Of

fi c e r B ro wn c ou ld not po sit ive ly te sti fy that the De fe nd a nt’ s spe e d e xce e de d f orty mil e s p e r h ou r. Th e of

fi c e r s a id that, in tota l, he vie we d the De fe nd a nt’ s v e hic le fo r a pp ro xima te ly ten sec onds befor e stopping the vehicle. The office r conce ded that, beca use there was little traff

ic,

n o o t h erv eh i cl e w as i n d an gerfr o mt h e D ef en d an t ’s d ri v i n g. T h e o ff

i ce r s ai d t h at h e d i d n o tch ar ge the Def endant with straddling lanes, but rather c harg ed him with rec kless driving

.-3-

On re dir e c t e xami natio n, the of fi c e r t e sti fi e d tha t, at th e tim e that he sto pp e d th e De fe nd a nt, he had a rea sonable suspicion that the De fenda nt had committed a crime.

The trial c ourt denied the Def en d ant’s mot ion to suppress and found that the office r had a

re as o n ab l e s u s p i ci o n t o s t o p t h e D ef en d an t ’s v eh i cl e, s t at i n g:

Th is o ff ic e r

. . . w a s o ut the re a t a no the r a c c ide nt. I g ue ss i t w a s a n a c c ide nt [that] somebody

was towing

. An d fo r an o fficer to stop that to go a fter that one, then appar ently

something c aug ht his at t ention. He just didn’t stop and g o afte r
every [body ] t hat passed the re.

He saw so met hi ng that c a us e d h im t o th ink that th is m a n may

be in s ome violation and g ot in behind him. He didn’t observe him long, fr om what he testified to. But, for an office r to leave one scene while it’s in prog ress to g o afte r somebody passing b y , [ s o m ething ] m ust have g ot his attention. S omething that cause d the

o f f i c e r t o f e e l t h a th e n e e d e d t o g o b e h i n d t h i s c i t i z e n j u s tp a s s i n g b y.

And the off

icer did testify

that they wer e out there and althoug h no other c ars
we re g oin g by

a t th a t ti me

. . . o r c omi ng in the op po sit e dir e c tio n of him a t that ti me . . . he obser ved hi m a fe w s ec o n ds after g etting in his squad c ar a nd g oing be hind him. And he still st ay ed splitting the c enter lane, pa rtly [i n] t he rig ht [lane] and

. . . [ p ar t l y ] i n t h e c en t erl an e. T h at t el l s m e s o m et h i n g.

I n oth e r wo rd s, a lth ou g h he wa s g oin g str a ig ht [tow ard the of fi c e r] lik e that, [t he off icer ] could not say

. . . [t o] a person who drive s

. . . fac ing othe r traf fic . . .

“ Wel l, I c a n’ t g o a ft e r h im, be c a us e he ’s drivi ng str a ig ht d ow n th e re on the op po sit e sid e of the str e e t, c omi ng ri g ht at me .[” ] T he of fi c e r h a d to do that. T hat’ s r e c kle ss if somebody ’s taking up another lane. Not just whipped ove r there , temporarily and

c [omi ng ] ba c k, or

so me thi ng [that] di dn’t contin ue . B ut t o s ta y in a , a po ssi ble op po sin g la ne , w he re so me on e ma y be c omi ng , th e n th e of

fi c e r ha s an o bli g a tio n to chec k that person out, stop that person. B eca use, a n acc ident could occ ur in that situation.

The Court’s of the opinion that the officer had rea sonable suspicion to stop the ve hic le , ba se d on tha t. An d this is not a situatio n whe re y ou we re sit tin g the re in a still sit uation, watching to see if a ny body ’s violating tr aff

ic l aw s

. He wa s at another scene . That tells me that something cause d him to leave that sce ne to g o afte r
s o m e o n e p a s s i n g b y.

Th e Cou rt ’s of

the op ini on that th e of

fi c e r h a d r e a so na

ble su sp ic io[n ] to believe that [ the Def

endant] was viol ating the l aw, traffic laws and had a rig ht to stop him. And the Court will not gra nt y our motion to suppress this particular stop.-4-

The De fenda nt pled g uiltyto D UI
, second offe nse, rese rving a certified question of law. The tr ia l c ou rt e nte re d a n a g re e d or de r that art ic ulate d the De fe nd a nt’ s c e rt if ie d q ue sti on of

la w a s, “ Di d the Cou rt e rr in de nying the De fe nd a nt’ s Mo tio n to Sup pr e ss thi s sto p o f h is m oto r v e hic le on July 2 1
, 2 0 0 2 ?”

II. Ana lys is A. Cer tified Q uestion of Law

Be cause this appeal comes be fore us as a c ertified que stion of law, pursuant to Rule 37(b) of the Te nnessee R u l es o f C riminal Procedur e, we must first determine whe ther the que stion pr e se nte d is dis po sit ive

. Ten nes se e Rul e of Cr imi na l Pr oc e du re 37 (b ) p ro vid e s, in p e rt ine nt p art , that:
An appe al lies from a ny order o r j udg ment in a criminal procee ding w here the law provides for

such appe al, and f

rom any judgme nt o f co n v i ct i on . . . upon a plea of g uilt y [ i f] . . . [t he] defendant entere d into a plea a g ree ment under Rule 11( e) but expli citly rese rved w ith the consent of the state and of the court the rig ht to appeal

a ce rtified question of law that is disposi tive of the c ase and the following

re qu ir e me nts are me t:

(A) T he judg ment of convic tion, or other doc ument to which such judg ment ref ers that is filed befor e the notice of appe al, m u s t co n tain a stateme nt of the ce rtified question of law r eser ved by the def endant f or appe llate re view; (B ) The que stion of law must be stated in the judgme nt or document so as to identify clea rly the scope and limits of the leg al issue re serve d; (C ) Th e jud g me nt or do c ume nt mus t re fl e c t tha t the c e rt if ie d q ue sti on wa s e xpre ssl y
rese rved w ith the consent of the sta te and the trial judge ; and (D) The judgme nt or document must re flec t that the defe ndant, the state, a nd the trial judge are of the opinion that the ce rtified question is dispositi ve of the case

. . . . Tenn. R. Crim. P. 37(b)(2)( i) (2004) (ame nding the rule to include the four spe cific c onditions set forth in subsection (b) (2)( i) above , eff ective July1, 2002); see also State v. Preston, 759 S.W .2d 647, 650 (Tenn. 1988) . Be cause all of the e vidence indicating that the Defenda nt was under the influenc e of alc ohol was obtained a fter the stop that he is challeng ing, w ere we to conc lude that the stop was unconstitutional there would be no e vidence to support the Def endant’ s DUI

conviction. Ac c or din g ly , w e a g re e wi th the tr ial court , a ndthe pa rt ie s, that th e c e rt if

ie d q ue sti on of

la w i s dispositi ve in this case. T he prerequisites for the consider ation of the merits of a ce rtified question of la w h a ve be e n me t, a nd
, the re fo re , we be g in ou r a na ly sis of wh e the r the of fi c e r wa s jus tif

ie d in stopping the D efe ndant’s vehic le.

B. M ot ion to Suppr e ss

Th e De fe nd a nt c on te nd s th a t th e tr ia l c ou rt e rr e d w he n it

de nie d h is m oti on to s up pr e ss-5-

beca use the off

icer did not have a rea sonable suspicion to stop his vehicle. T he standa rd of r eview for a trial court’ s findings of fac t and conclusions of l aw in a suppression hearing was e stablished i n S t at e v. Od o m , 9 2 8 S

. W

. 2 d 1 8 (T en n

. 1 9 9 6 ). T h i s s t an d ar d m an d at es t h at “atri al co u rt ’s fi n d i n gs of fac t in a

suppression hea

ring will be upheld unless the evide nce pr eponder ates other wise.” I d. at 23; see State v. Randolph, 74 S.W .3d 330, 333 (Tenn. 2002). The preva iling party in the trial court is “ en t i t l ed to t he strong est leg itimate view of the e vidence adduce d at the suppre ssion hearing as well as a ll r easona

ble and leg itimate inf

ere nces that may be dra wn from that e vidence .” Odom, 928 S.W .2d at 23. Furthermore
, “[q] uestions of credibility of the witnesse s, the weig ht and value of the evidenc e, and r eso l u t i o n o f conflicts in the evide nce a re matters entrusted to the trial judge as the trier of fac t.” I d. Howeve r, this Court reviews the trial court’s a pplication of the law to the fac ts de novo, without any defe renc e to the determinations of t he trial court. State v. Walton, 41 S .W.3d 75, 81 (Tenn. 2001)

. The defe ndant bear s the burden of demonstrating that the evidenc e pre ponderates ag ainst the trial court ’s finding s. Odom, 928 S.W .2d at 22-23; see State v. Yea rg an, 958 S.W.2d 626, 629 (Tenn. 1997)

.
The F ourth Amendment to the United States Constit ution, made applicable to the States by the Fourteenth Amendme nt, and Article I section 7 of t he Tennessee Constit ution, protect citizens ag ainst unrea sonable sea

rche s and seizures.
Consequently , under both the f eder al and state constitutions, a war rantless sear ch or

se izur e is p re su me d u nr e a so na ble , and evi dence dis c ov e re d a s a re su lt the re of

is subject to suppres s i o n unless the State demonstrate s by a pre pondera nce of

the

e vid e nc e that th e se a

rc h o r s e izur e wa s c on du c te d p ur su a nt to on e of the na rr ow ly define d exceptions to the warr ant re quirement.

Sta te v. Simp so n, 96 8 S. W.2 d 7 76 , 7 80 (T e nn . 1 99 8) . T he fe de ral andsta te c on sti tut ion s’ prohibitions against unreasona ble sea rche s and seizures also a pply to vehicles. Simp son, 968 S.W .2d. at 780. Acc ording ly
, we must first determine whe ther the de tention of the De fenda nt by the police off icer amounted to a se izure. I f so, we must then determine whether the offic er posse ssed

an articulable re asonable suspicion for an investigatory stop under Te rry

v. Ohio, 392 U.S. 1 (1968),

a ndits pr og e ny . “ On ly

wh e n th e of

fi c e r, by me a ns of ph y sic a l f

or c e or sh ow of a uth ority , h a s in

s o m e w a y r e s tr a i n e d t h e l i b e r t y o f a c i t i z e n m a y w e c o n c l u d e t h a ta ‘ s e i z u r e ’ h a s o c c u rr e d

. ” T e rr y, 392 U.S. at 19 n.16; State v. Hord, 106 S.W.3d 68, 70 (Tenn. Crim. App. 2003). The Supreme Court stated that “a person ha s been ‘ seized’ within the meaning of the F ourth Amendment only if, in view of all of the c ircumstance s surrounding the incident, a r easona ble per son would have be lieved that he was not f

ree to le ave.” United States v. Mendenha ll, 446 U.S. 544, 554 (1980); Hord, 106 S.W. 3da t 71

. F urthe r, ou r Sup re me Cou rt ha s sta te d tha t “Whe n an of fi c e r turns on his blu e lig hts
, he or she has clea

rly initiated a stop . . . [and the vehicle’ s driver is] ‘seized’ within the meaning of the Ter ry decision.” State v. Pulley , 863 S.W .2d 29, 30 (Tenn. 1993)

.

I n the ca se under

submissi on, it is clear that the Def endant was “seized” within the meaning of the State a nd Fe dera l Constit utions. Office r B rown testified tha t he turned on his lig hts and stopped the De fenda nt’s vehicle. T here fore , it is clear that the Defe ndant was “ seized” within the-6-

me a nin g of

the Te rry de c isi on . T hu s, in o rd e r f or the sto p to be c on sti tut ion a lly va lid , at th e tim e that Offic er B rown turne d on his vehicle’s blue lights, he must have had re asonable suspicion, supported by

articula ble fa cts, that the De fenda nt had committed, or wa s about to commit a criminal offe nse.
Police may

constitutionallyinitiate an investiga tory stop if they have rea sonable suspicion, supported by

specific and articulable facts, t hat a person has e ither committed a c riminal offe nse or is about to commit a criminal offe nse. Ter ry , 392 U.S. at 20-21; State v. Randolph, 74 S.W .3d 330, 334 (Tenn. 2002 ); Simps on, 968 S.W .2d at 780. I n evaluating whe ther a police off

icer has

re a so na ble su sp ic ion su pp orte d b y sp e c if ic a nd art ic ula

ble fa c ts, a c ou rt mus t c on sid e r the tot a lit y of the c ircumstance s. United States v. Cortez, 449 U.S. 411, 417 (1981); State v. Watkins , 827 S.W. 2d29 3, 29 4 ( Te nn . 1 99 2) . “ Th is i nc lud e s, bu t is no t li mit e d to , o bje c tiv e obser vat ion s, information obt ained from other poli ce office rs or ag encie s, information obt ained from citizens, and the pattern of operation of certain offender s.” Watkins, 827 S.W .2d at 294; see Corte z, 449 U.S. at 418. “A court must a lso consider the r ational infer ence s and deduc tions that a trained police office r
m a y d r a w f

r o mt h e f a c t s a n d c i r c u m s t a n c e s k n o w n t o h i m

. ” W a t k i n s , 8 2 7 S

. W

. 2 d a t2 9 4 ; s e e T e rr y, 39 2 U .S. a t 21

. “ F ina lly , the c on te nt, qu a lit y , an d qua nti ty of inf orma tio n pos se sse d by

po lic e mus t be ass e sse d in de te rm ini ng wh e the r i t is su ff ic ie ntl y re lia ble to s up po rt

a fi nd ing of

re a so na ble suspicion.” State v. Keith, 978 S.W.2d 861, 867 (Tenn. 1998).

Th e of fi c e r, of c ou rs e , mu st b e able to a rt ic ulat e so me thi ng mor e than a n in c ho a te

a ndun pa rt ic ula ri zedsu sp ic ion or

hu nc h. Th e F ou rth A me nd me nt r e qu ir e s so me minimal level of objective justifica tion f or making the stop. That level of suspicion is considera

bly less than proof of

wrong doing by

a pre pondera nce of

the evidenc e.
Keith, 978 S.W.2d at 867 (quoting United S tates v. Sokolow, 490 U.S. 1, 7-8 (1989)). As a g ener al rule, the stop of a n automobile is constitu t i o nally rea sonable, unde r both the state a nd fede ral

c on sti tut ion s, if

the po lic e ha ve pr ob able c a us e or re a so na ble su sp ic ion to bel iev e that a tr a ff ic vio la tio n h a s o c c ur

re d. Sta te v. Vi ne y ard, 958 S. W.2 d 7 30 , 7 34 (T e nn . 1 99 7) ; State v. Willi e Norman, No. W2003-02067-CCA-R3-CD, 2004 WL 2255253, at *6 (Tenn. Crim. App., at J ackson, Oct. 7, 2004), no perm. app. filed (holding that a police of

fice r had r easona

ble suspicion to stop a defe ndant bec ause the defe ndant ra n a stop sign and had his music play ing “ extremely loud”).

Th e De fe nd a nt a sse rt s th a t h is act ions d id n ot g ive Of fi c e r B ro wn re a so na

ble su sp ic ion to stop h i s v eh i cl e pursuant to St ate v. B innette, 33 S.W.3d 215 (Tenn. 2000), and State v. John Crawley , Sr., No. M2003-01289-CCA-R3-CD, 2004 WL 112867 (Tenn. Crim. App., at Nashville, Ja n

. 2 3
, 2 0 0 4 ), p erm. a

p p

. d enied (Tenn. June 21, 2004). I n Binne tt, the State asserte d that the office r had r easona

ble suspicion to stop the defe ndant beca use the defe ndant was: (1) trave ling on

a roa d at about midnight; (2) it was not raining , and the we ather was not incleme nt; (3) there was no
c on str uc tio n a ndno tr a ff

ic of a ny c on se qu e nc e ; ( 4) the vid e ota pe sh ow s that, in a

tw o mi nu te tim e period, the de fenda nt’s car appea rs to touch the ce nter lane at least four times; and (5) the vide otape also shows that the defendant’s car made a sudden swerve withi n his own lane. B innett, 33 S.W .3d at 218. The Te nnessee Supreme Court re viewed a video of the defe ndant’s driving and held that a ny-7-

movement by

the def endant wa s “cle arly

not e x ag g erated,” a nd showed the de fenda nt “proc eeding

corr ectly throug h a number

of interse ctions and stop li gh t s and maintaining appropriate distance s behi n d v e h ic le s th a t h e w a s f o ll o w in g

. ” I d

. T h e Co u r t n o te d th a t th e d e f e n d a n t d id n o t, on the videotape, violate any

traff ic ordinances. I d. Simi larly
, in Crawley
, this Court revie wed a videotape

o f atra ff i c s t o p an d co n cl u d ed t h at t h e d ef en d an t ’s ac t i o n s wh i l e d ri v i n g, o f p au s i n g at a y i el d s i gn for f ifteen to twe nty

seconds a nd driving into the opposite lane of a street that did not have painted lines, did not g ive a police office r rea sonable suspicion to stop the defe ndant’s vehic le. The Cra wley court he ld that the defe ndant pause d for a n extended period be cause he wa s not famil i ar with that

are a and any drifting by the defendant was due to a car parked on the s ide of a road. The court noted that the video showe d that the def endant stopped at t wo s t o p s i gn s and ac tivated his turn signa l be fo re ini tiatin g tw o tu rn s.

B othB inn e tt a ndCr a wl e y are dis tin g uis ha

ble fr om the c a se c ur

re ntl y be fo re us , in mul tip le reg ards. F irst, in both of t hose ca ses the Court was a ble to revie w videotape evidenc e showing the defe ndants’ driving . Her e, we have no suc h ev i d en ce and we must rely on Offic er B rown’s testimony , which wa s deeme d cre dible by the t rial court. Second, in both Binnett and Cra wley the de fe nd a nts didno t c lea rl yc omm it a tr a ff ic vio la tio n, wh ic h w ou ld g ive the po lic e re a so na ble suspicion to stop the defe ndants. Conversely , in this case, Of fice r B rown testified that he believe d that the Def

endant wa s speeding , and the Defe ndant was driving over the cente r lane for a n extended period of time. Further, the Def endant was driving toward the office r and the acc ident scene , and he wa s drifting toward the si d e o f t h e ro ad whe re the office r and the acc ident scene wer e located. Te nn e sse e Cod e An no ta te d s e c tio n 5 5- 8- 12 3 ( 20 03 ) p ro vid e s th a t:

Whenever

any roadw ay has bee n divided into two (2) or more c lear ly marke d lanes fo r t ra ff ic , th e fo llo wi ng ru le s, in a dd iti on to a ll o the rs c on sis te nt h e re wi th, sh a ll

ap p l y:
(1) A ve hicle shall be driven as ne arly as practicable entirely

within a single lane a nd shall not be moved fr om such lane until the driver has first a s ce rt ained that suc h

m o v e m e n tc a n b e m a d e w i t h s a f e t y;
(2) Upo n a r o a d w a y w h ic h is d iv id e d in to th r e e ( 3 ) lan e s , a v e h ic le s h a ll not be driven in the c enter

lane e x cept whe n overtaking and passing another vehicle w here the roa dway

is clear ly visible and such ce nter lan e is clear of traf fic within a saf

e dis ta nc e , o r i n p re pa

ratio n f or a le ft turn o r w he re su c h c e nter l ane is a t th e tim e allocate d exclusively to tr aff ic moving in the direc tion the vehicle is proc eeding and is signposted to g ive notice of such allocation . . . .

We conclude that the evidence does not preponde rate ag ainst the t rial court’s determination that the Def endant’ s actions of c rossing the ce nter lane constituted a traffic offense , g iving Of fice r B rown
rea sonable suspicion to stop the Defenda nt’s vehicle. The officer te stified that the Def endant c rossed into the center

lane f or an ex tended pe riod of time, straddling the Def endant’ s proper

lane a nd the

c e nte r l a ne . A ft e r the of

fi c e r b e g a n f

oll ow ing the De fe nd a nt, the De fe nd a nt c on tin ue d to dr ive in-8-

bo th l a ne s, str a dd lin g the c e nte r l ine . T he tr ia l c ou rt fo un d th a t th e off

ice r h a d a

re a so na ble suspicion to stop t he De fenda nt because the De fenda nt was trave ling in the two lanes of tr aff ic for an extended perio d o f t i m e, and his driving could cause an a ccide nt. Furthe rmore, the Def endant

c omm itt e d a

tr a ff ic vio la tio n, wh ic h g a ve Of fi c e r B ro wn re a so na

ble su sp ic ion to sto p th e De fe nd a nt. Th is i ssu e is w ith ou t me ri t.

III. Conclusi on

I n acc ord ance with the fore g oing a uthorities and re asoning , we a ffirm the tria l court’s jud g me nt.

_______________________________ ROBERT W. WEDEMEYER, J UDGE