# FILED
December 7, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE SEPTEMBE R SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. # M1999 01439 CCA R3CD ) Appellee, ) ) ) DICKSON COUNTY VS. ) ) HON. ALLEN WALLACE, RONALD WAYNE SMITH, ) JUDGE ) Appe llant. ) (Certi fied Quest ion-Searc h)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF DICKSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE : MICHAEL J. FLANAGAN PAUL G. SUM MERS 95 White Bridge Road #208 Attorney Generaland Reporter Nashvill e, TN 37205 ELIZABETH T. RYAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 DAN ALSOBROOKS Distri ct Attor ney General SUZANNE LOCKERT Assistant Distri ct Attor ney General P.O. Box 580 Charlotte, TN 37036

OPINION FILED ________________________ REVERSED; CONVICTION VACATED DAVI D H. WELL ES, J UDGE-2- 

# OPINION

The Defenda nt, Ronald W ayne Sm ith, pleaded guilty in the C ircuit Court of Dickson County to possessi on of co caine for r esale and possessi on of marijuanaforresale, r eserving a cer

tifi ed question of

law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certif ied questi on of law i s whether there were su fficient spec ific and articu lable fa ct s to just ify t he stop of t he Defe ndan t’s vehicle and/or whether the dur

ation of t he stop excessi ve. We find thatthere were not suffi cient speci fic and art iculabe facts to j ustify the stop of

the Defe ndan t’s vehicle. Because we conclude that the stop wasillegal, we reverse the order of the trial judge overrul ing the motion to suppress.

Before pleading gui lty i n this case, the Defendant file d a mo tion to suppress the evide nc e seized in the warrantl ess search of his vehicl e, which mot ion was denied by t he trialcourt after a suppressi on hearing. The onl y witness to testify at t he hearing was Mark Nor rod, the State Trooper who stopped the Defendant’s vehicle. Trooper Norrod testifi ed thathe was patrolling Inte rstate 40, traveling ea stboun d, on O ctober 7 , 1997. H e was tr aveling b ehind the Defe ndan t’s vehicle. He could not recallhow mu ch dist ance was b etwee n his vehicle and th e Defendant’s vehicle, but said t hat the Defendant ’s vehic le was “within eyesight. ” He observed the Defendant’s vehicle change lanes twi ce without giving a signal, while i n the process of passing another

vehicle. After t he Defe ndan t’s vehicle passe d the other v eh icle and r eturned to t he right l ane of travel, it wa s drivi ng on the white line near the edge of t he roadway. Trooper Norrod did no t say tha t the D efend ant’s vehicle created a ny type of hazard or that it almost caused an acci dent bychang ing lanes without sig naling. He could not remember the other

vehicle applying br

akes or taki ng any sort of evasive act ion due to the Defendant’s vehicle passi ng it wit hout signali ng. Though he asserte d thatthe lane c hange was “improper, ” Trooper Norrod di d not classi fy thi s lane change as a “fla grant v iolation .” He co uld no t recall for w hat distance the-3-

Defe ndan t’s vehicle d rove on thewhite li ne, but he di d admit that the Defendant did not endanger hi mself or anyone el se by dri ving on the whi te line. After viewing the Defend ant make this lane chang e, Troope r Norro d stopped the vehicle and started to give t he Defendant a warni ng ticket for making an i mproper lane cha nge.

At the sup p ression heari ng, defense counselattempted to clarif y the
reason Trooper Norrod stopped the Defendant’s car , and the foll owing coll oquy occurred: Q. Was there anything el se suspicious about the car

other than the way he changed lanes? A. I’m sorry, what do you mean by suspicious? Q. Anything suspi cious to you about that car that made you curious about it? A. He failed to give a signal and that’s w hat I stopped h im for. Q. Anyth ing other than that? A. No , si r, that’ s why I s top ped h im. Q. There was no other r eason, other than t hat, for you to stophim ; is that right? A. Tha t’s correct.
TrooperNorrod asked the Defendant to get out of the car and move to the
re ar of the car so that he coul d get away fr om the roadway whil e he wrote the ticket. The Defendant locked t he doors when he got out of the car . Tr ooper Norrod engaged the Defendant i n conversati on while he w as prep aring the ticket. The Defe ndan t told him thathe had flown f rom Louisvil le, Kentucky to El Paso, Texas to l ook for a f riend; he then rented a car and was ret urning to Kentucky when he could not f ind his fri end. The car rental agreement requir ed that the car be returned in El Pa so in three days . The Defe ndant also told T ro o per Norrod thathe was on disabil ity. These commen ts mad e Tr ooper Norrod suspicious, and he asked for consent to search t he vehicle. The Defen dant a greed to the search, and when the Defendant op ened the trunk, Trooper Nor rod s melled a strong odor of marij uana. He immediatel y placed the Defendant under arrest and then unzipped a duff le bag in t he trunk, wher e he discovereda large quantity of1 We find no merit to the Defendant's argument that the dura tion of the stop was excessive. It is on ly the initial stop of the Defendant's vehicle that we find to be an unreasonable seizure. -4- a substance beli eved to be marij uana. Another of ficer came to assist in the search of the vehi cle, and a substance beli eved to be cocai ne was fo und a s well.

W hen Troop er No rrod tu rned o n his b lue ligh ts to sto p the D efend ant’s vehicle, the video cam era in the poli ce car was automati cally ac tivated. The tape does not show the lan e cha nge, b ut inste ad sh ows th e Def enda nt drivin g in the right- hand lane of t raffi c and pulli ng off theroad . No other tr affic i s seen imm ediate ly around the D efendant’s ca r. On the tape, T rooper No rrod is heard telli ng the Defendant

that he pul led him over because he changed lanes wit hout signali ng, he was “ridi ng” the white line, and he did not know if the Defendant was drunk or ti red. He asked the Defendant to get out of the car and then engaged t he Defen dant in co nversatio n while he was pre paring th e ticket. Im media te l y after he han ded the Defen dant the ticket, he as ked if he c ould sea rch the ca r, to which the Defend ant r epli ed, “ yeah, sure .” Th e De f endant opened the car and the trunk for Troop er N orrod, who le aned into the trunk a nd the n prom ptly arrested the Defendant. The time betwee n the s top and the arr est was approximately seven minutes. 1

After argument of counsel, the tri al court i ssued its r uling. The judge began with the follow ing statem ent:

You know, I look at t his case a little di fferent I think than both of you do. Firstoff, t his patrol man is out t here on the road pa trolling, to see what ’s going on, and he sees a vehicl e, not that he’s viol at e d the law, but t hat he’s not driving like ev erybody else. He’s hugging the right l ine. It’s not a r andom stop. I t’s not just random looking for somebody. Here is a car kind of acting a l ittl e strange. Now, what’s he going to do? Let it go, or fol low him unti l he runs off the road or som ething or just investiga te it? He’s not looking for any

viol ations

of the l aw, he’s just inve stigating it. Here ’s a car that has not been doing just right, so he puts his bl ue lights on and pulls hi m over to investigate.-5-

The trialjudge then found that Trooper Norrod was j ustifi ed in becoming suspiciousof the De fendan t after talking to the Defendant for a few minutes and further found that the s earch was consensual. He stated, “ I can’t see anything in thi s ca se, Mr. Qui ll en, that I thi nk ma kes this stop and the ult imate search of the car even constitut ional [sic]suspect” and denied the motion to suppress.
When reviewing the gra nt or denialof a motion to suppress, [q]uesti ons of credibi lity of the wit nesses, the wei ght and valueof the evidenc e, and resolution o f conflicts in the evidence are matters entrusted to the tri al judge as t he trier of fact. The party prevail ing in the trial cour t is entitled to the stronge st leg it ima te view of the evidence adduced a t the su ppres sion h earing as we ll as all reaso nable and legi timate infer ences that

may be drawn from that evidence. So long as the g reater wei ght of the e vidence suppo rts the trial cou rt’s findin gs, tho se find ings sh all be u pheld . In oth er words, a trialcourt’s findings of fact in a suppression hearing will be upheld unless t he evidence prepond erates other wise. State v. Odom , 928 S.W .2d 18, 23 (T enn. 1996 ). However, the appli cation of the law to the fac

ts as found by

the trialcourt is a question of law which the app ellate court reviews de novo
. State v. Yeargan , 958 S.W.2d 626, 62 9 (Tenn . 1997) (citi ng Beare Co. v. Tennessee Dept . of Revenue , 858 S.W.2d 906, 907 (Tenn. 1993)). Becau se only T rooper N orrod tes tified at th e suppr ession heari ng, the facts presented at the hearing ar e basicall y undi sputed

. The refore , only question s of law are at issue b efore this C ourt.

The Fourth Amendm ent to the United States Consti tution provi des: Unrea sona ble searches and seizures .–Th e right o f the pe ople to be secure in their persons, houses, papers, and effects, against unrea sona ble searches and seiz ures, shal l not be vi olated, and no warran ts shall issue, but up on pro bable cause, supported by oath or affirma tio n, and partic ularly describi ng the place to be searched, an d the persons or things to be seized. Similarl y, Arti cle I, § 7 of the Tennessee Const ituti on guarantees thatthe people shall be secure in t heir persons, houses, papers and possessions, from unrea s onable searches and s eizures; and that general warrants, whereb y an officer m ay be co mm anded to search suspected places, w ithout evide nce of the fa ct comm itted, or to seize any person or per sons not named, whose off ences are not particu larly described and suppor ted byevidence, ar

e dangerous to libert y and ought not t

o be granted.-6-

The int e nt and purpose of the prohibition agai nst unreasonabl e searches and seizuresfound in the Tennessee Const ituti on has been found to be t he same as thatfound in th e Fourth Ame ndme nt to th e Unite d States Constitu tion. State v. Simpson , 968 S.W.2d 776, 779 ( Te nn. 1998) (ci ting State v. Downey , 945 S.W.2d 102, 106 (Tenn. 1997); Sne ed v. State , 423 S.W.2d 857, 860 (Tenn. 1968)). According to

the Supreme Court, the pu rpose of theprohibiti on against
unrea sona ble searc hes a nd se izures in the Fo urth A men dme nt is to “safeguard the privacy

and securit

y ofindivi duals against arbitr ary invas ions ofgovernment officials.” Cama ra v. Municipal Co urt , 387 U.S. 52 3, 528 (1 967). The F ourth Amendment protects p eople, not places, wherever they may have a “reaso nable expectati on of privacy.” Katz v. United States , 389 U.S. 347, 361 (1967) (Harl an, J., concurring).

Under both the United States an d Tennessee Constitut ions, a sear ch or seizure condu cted witho ut a w arrant is pre sume d unrea sonab le. Coolidge v. New Hamp shire , 403 U.S . 443, 454 -55 (197 1); Simpson , 968 S.W.2d at 780; State v. Watkins , 827 S.W .2 d 293, 295 (Tenn. 1992). Therefore, evidence
se ized as a result of

a search or sei zure conducted wi thout a warr ant must be suppressed unless th at search or seizure was co nducte d pursu ant to one of the recogn ized exce ptions to th e warran t requirem ent. Id.

One such excepti on to the warr ant requir

ement is k nown as the autom obile exception. In Carroll v . United States , 267 U.S. 13 2 (1925), the S upreme Court held that poli ce officers could sear ch an automobile wi thout a war ra nt if t he officers had probable cause t o believe t hat the automobil e contained contraband. Carro ll v. UnitedStates , 267 U.S. 132, 149 (1925). Such a sea rch is deemed reasonabl e “because the vehicle can b e quickly move d out of the locality o r jurisdi ction in which the warrant must be sought,”

making it i mpractical to secure
a warrant before searc hing the autom obile. Id. at 153; see also Cham bers v. Maroney , 3 99 U.S . 42, 5 1 (1970). I n additi on to the exi gency created by the-7-

mobility of automobiles, the Supreme Court has uphel d searches of automobiles based in part on a notion t hat there i s a “lesser e xpecta tion of p rivacy” in automobiles. See Califor nia v. Carney , 471 U.S . 386 (19 85); Card well v. Lewis , 417 U .S. 583 (1974) . A four- justice plurality in Card well v. Le wis declared tha t a person has a lesser expectati on of privacy in a motor vehi cle because it s functi on is transportation and it seld om serves as one’s r esidence or t he repository of perso nal effects . A car has litt le capacit y for escapi ng public scrutiny. It travels public thorough fares where its occup ants and its contents are in plain view. Card well , 417 U.S. at 590. Eleven years later, in Califor nia v. Carney , a majo rity of the Supre me C ourt expre ssly applie d both ra tionales to uphold the warrantless search o f a vehicl e in a cri minal investigati on, explai ning that persons hav e a lesse r expe ctation of privac y in automob iles due “to the perva sive regulati on of vehicles capa ble of traveling on the public high ways.” Carney , 471 U.S. at 392.

W hile an indivi dual in an automobi le may have a “l esser expectat ion of privacy,” that indivi dual does not “lose allreaso nable ex pectation of privacy” when he or sh e enters that autom obile. See Delaware v. Prouse , 440 U.S. 648, 662 (1979). As t he Suprem e Court has state d, “[w]ere th e individua l subject to unfetter ed governmental i ntrusion ev ery ti me he entered an automobil e, the security guarantee d by t he Fourth Ame ndm ent wo uld be seriou sly circum scribed.” Id. at 662-63. Thi s is why i ndividual ized susp icion is g enera lly required before a n autom obile ma y be sea rched o r seized. See id. at 654-55

.

The stop of an automobile and the detention of its occupants constit utes
a seizure, even if

the purpose of the stop is l imited and the detention i s b rief

. Wren v. UnitedStates , 517 U.S. 806, 809- 10; Delaware v. Prouse , 440 U.S. 648, 563 (1979); United States v. M artinez-F uerte , 428 U.S. 54 3, 556-58 (19 76); State
v. Vineyard , 958 S.W.2d 730, 734 ( Tenn. 1997) . A police office r may stop or “seize”an automob ile if the officer has probab le cause to be lieve that a cri minal offense has occur red or that a traffic violation has occ urred. Wren , 517 U.S. at-8-

810; Prouse , 440 U.S . at 655, 65 9; Vineyard , 958 S.W.2d at 734. If the offi cer has probable ca use to believe that a vi olation of the traf fic code has occurred, t he seizure will be uphe ld even if the sto p is a co mple te prete xt for the officer’s subjective motivati ons in making thestop. Wren, 517 U.S. at813-17 ; Vineyard , 958 S.W .2d at 734 -35.

In some circumstances, a police of ficer may al so stop or “s ei z e” an indivi dual in the absence of probabl e cause. In Terry v. Ohio , 392 U.S. 1, 30 (1968), the Su prem e Cou rt appr oved th e li mited and tempo rary seizu re of a p erso n for questioning and for a “pat-down” for weapons if an of ficer has a “reaso nable suspicion” that the pe r son is armed a nd dange rous. The C ourt assessed the reasonabl eness of theofficer ’s acti ons by “‘bal ancing the need to search [or seize] against the invasion which t he search [or seiz ure] entails.’” Id. at 21 (quoting Cama ra v. Municipal Co urt , 387 U.S . 5 23, 5 34-35(196 7)). To justify an intrusi on into a per son’s expectation of p rivacy, the offi cer must “point to specifi c and artic ulable facts, whi ch taken toget her with r at ional i nferences from those facts, reasonabl y warrant t hat intrusion.” Terry , 392 U. S. at 21. T his limited T erry -type sei zure doctri ne has been expanded to al low limi ted and temporary seizures of indivi duals for q uestioni ng if an of ficer has

a reas onab le suspicion that an individual has been involve d in or i s abo ut to be involve d in criminal activity. See United S ta tes v . Brignoni-Ponce , 422 U.S. 873, 880-81 (1975). Now, a p olice officer m ay seize a n autom obile and question its occup ants if the offic er has r easonable suspic ion, based on spec ific and articula ble facts, that the occup ants have be en invo l ved in or ar e about to be involved in crimina l activity. Ornelas v. Uni ted States , 517 U.S. 690, 69 3 (1996); Prouse , 440 U .S. at 663 ; State v. Simpson , 968 S.W .2d 776, 780 (Tenn. 199 8); State v. Vineyard , 958 S.W .2d 730, 734 (Tenn. 199 7).

“R ea sona ble suspicion” is an object ive standar d, to be det ermined by looking at the totality of th e circum stance s. Un ited States v. Cortez , 449 U. S.-9-

411, 417-18 (1981); Ornelas , 517 U.S. at 696; State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 1992). The Supreme Court has stated that [a]rt iculat ing precisel y what “reas onabl e susp icion” a nd “pro bable cause” mean is not possible. Th ey are commonsense, nontechnical conceptionsthatdeal with “t he factual and practi cal consider ations of everyday life on which rea sonable and prudent men, not legal technicia ns, act.” Ornelas , 517 U.S. at 69 5 (q uoting Illi nois v. Gat es , 462 U.S. 21 3, 132 (1983 )). Relevantfactors to consider include the offi cer’s personal observati ons, informati on obtained from other policeofficers or agenci es, informati on obtained from citizens, and the pa ttern of opera tion o f certain offe nders. Simpson, 968 S.W.2d at 783; Watkins , 827 S.W .2d at 294 ; Cortez , 449 U.S. at 41 8. A court must also consider

the rationalinferences and deductions t hat a trai ned officer may dr aw from the facts a nd circum stance s know n to him. Id.

In this case, the se iz ure of the Defendant’s car was based entir

ely on TrooperNorro d’s pe rsona l ob servati ons. Trooper Norr od testi fied that

the Defendant passed ano ther veh icle on Interstate 40 w ithout signaling befo re changing lanes to pass o r bef ore retur ning to th e right- hand lane, and t hat the Defendant was dri ving on thewhite li ne after returni ng to the ri ght-hand lane of traffi c. Trooper Norrod coul d not say that the Defendant cr

eated a hazard by changing lanes wit hout signal ing or by driving on t he white l ine. On thevideotape of the encounter between Officer Nor rod and the Defendant , Officer Norrod tells the Defendant that

he “did not

know if [the Defen dant] wa s drunk or sleepy .” The videotapebriefly sh ows th e Def enda nt’s car driving d own the road with no other vehicles in the near vicini ty. Thus, on the b asis of these facts, we must determine whether there was either pr obable cause or reas onab le suspicio n to justif y the seiz ure of the Defendant’s vehi cle.

As previous ly stated, if an officer h as prob able cau se to belie ve that a violat ion of the tr

affic code has occurred, t he seizure wi ll be uphel d even if t he stop is a complete pre tex t for t he officer’s subj ective motivations i n making the-10-

stop. Wr en, 517 U .S. at 814 -17; Vineyard , 958 S.W .2d at 734 -35. Th e State asserts that the Defendant made an “improper” lane change because hedid not signa l, yet we can fi nd no auth ority for the pro position th at failing to give a si gnal under the facts

of thi s case const itutes a violat ion of thetraff ic code. The relevant provi sion of the traf fic code is as fol lows: Turning movem ents. -- (a) No person sh all tu rn a vehicl e at an intersect ion unless the vehicl e is in pr oper positi on upon the ro adway as required in § 5 5-8-140, or turn a vehicle to enter a p rivate roa d or drivew ay, or otherwise turn a vehi cle from a direct course or move right or left upon a roadway , unles s and until such movement can b e ma de with reaso nable safety. No person shall so turn any vehicle without giv ing an appropriate signal i n the manner provided in §§ 55-8-143 and 55-8-144 in the event a ny othe r traffic may be affected by such movement

. Tenn. Code Ann. § 5 5-8-142 (emph asis add ed). Very similarly, another prov ision provides: Every drive r who inte nds to start, stop or turn, orpar tl y t urn from a directline, shall f irst see that such movement can bemad e in safety, and whenever the operation of any other vehicle may be af fected by such movement , shall give a si gnal requir ed in thi s section, plainly visible to the driver of such ot her vehicl e of the i ntention t o mak e such m ovem ent. Tenn. Code Ann. § 55-8-143(a ) (empha sis added). Thus, the only time a dri ver must signal before changing l anes appears to bewhen th at change will affect other vehicles.

Here, the Defendant changedlanes to pass another veh icle on a four-lane divided highway withou t first giving a signal. We do not believe this i s an unusual
occurrence. There was no ev idence that any other vehicles, other than t he Defe ndan t’s v ehi cle and the vehicle t he Defendant passed, were in the ne ar vicinity. This was certainly not a situat ion in whi ch the Defendant was changing lanes during ru sh hour or oth er time of high traffic flow, whe re almost eve ry movement of every vehicle wi ll l ikely af fect the t ravel of

other vehi cles on the road. The v ehicle the Defendant pass ed was travel ing in t he right- hand lane of traffi c, with the Defendant behind i t. When the Defendant moved into th e lefthand lane, his lane change would not have af fected theforward t ravel of the other-11-

car. Similarly, when the De fendant changed back i nto the ri ght-hand lane, he
was in front

of the other vehicle, so h is lane chang e would no t have affected the movement of that car. That car would not have ha d to slow down, speed up, or in any way

alter i ts course due to the Defendant’ s lane change. Therefor e, the Defendant did notviolate a ny pro vision o f the traffic code by fai ling to signal, and TrooperNorrod, by r

eason of h is observ ations, did not have probab le cause to believe t hat the Defendant violated a provisi on of the tr affic code.
Similarly, Troop er Norro d did not h ave reas onable suspicio n to believe t hat the Defendant was inv olved in or

about to be involved in criminal activity, which would have alsojust ifi ed th e sei zure . He appare ntly sugge sted to the Defendant thathe thought t he Defendant might hav e been drunkor tired, b ut he in sisted in the suppre ssion he aring tha t the onl y reason he stopp ed the Defendant was because of an “improper ” lane change. As already noted, the Defendant did not violate any traf

fic prov ision by c hang ing lane s without signali ng. Making a “lawful” lane change, whi ch we equate somewhat to a “ proper” l ane change, as described herein, co uld not gi ve any off icer reaso nable suspicion t o believe t hat
an individu al is either drunk or tir ed. However, Troop er Norrod als o testif ied that the Defendant was dri ving on the whi te line after he r eturned to t he right- han d lane of traf

fic. Thus, we must determine whether drivi ng on the white line af ter making a lane change is a suf ficien t fact to warra nt reaso nable su spicion th at a driver i s either drunk or tir ed.

We have previ ously consi dered the is sue of reasonabl e suspicion i n a number of cases. For example, in State v. Carl Seaward All en , C.C.A. No. 01C01-9707-CC-00272, 1998 WL 458177 (Tenn. Crim. App., Nashv ille, Aug. 7, 1998), a case invol ving this same poli ce officer, Trooper Norr od testi fied that he observed a vehiclechange from the r ight to t he left l ane for no apparent reason and then move back o ver i nto t he ri ght l ane andcros s thewhite li ne tw ice. He turned on the video camera and recorded the vehi cle twice veer over t o the-12-

ext remeright- hand side of t he road across t he white l ine. It was almos t midnigh t, and Troo per N orrod notice d that th e vehic le bore Texas license plates . He sa id thathe thought t he driver was either d rowsy or under the i nflu ence of an intoxicant. This C ourt uph eld the se izure, con cluding th at “given the time of nig ht,
cros sin g the fog l ine three t imes, and the di stance from whi ch the vehic le had come, Officer N orrod ha d caus e to stop A ppelle e’s vehicle.” Id. at *3. I n State
v. George Wesley H arville , C.C.A. No. 01- C-01-9607-CC-0030, 1997 WL 661726 (Tenn. Crim. App., Nashv ille, Oct. 24, 1997) , we found the presence of
reaso nable suspicion when t he officer observed a vehicle make a wideright turn which resulted i n the vehicl e crossing t he cen ter line i nto the opposi ng lane of traffi c, causing another vehicle in the o ppos ing lan e to ho nk its ho rn. Th e vehic le then began weaving wit hin its lane of t raffi c and was “rid ing” the ce nter li ne at times. In State v. Ran dall L. M cFarlin , C.C.A. No. 01C01- 9406-PB-00202, 1995 WL 353776 (Tenn. Crim. App . June 13, 1995), we found r easonable suspic ion when a vehic le was ob served w eaving b ack an d forth from one lane to the other and across the center line of a highwayand hitti ng a curb whil e making a sharp right turn. Recently, we fou nd rea sona ble su spicio n whe n a veh icle was weaving within its ow n lane of traf fic, app roaching the dividi ng line a number of times, and touching the cente r line at least tw ice. State v. Guy Bin ette , C.C.A. No. 03C01- 9802-CR-00075, 1999 WL 42760 6 (Ten n. Crim. A pp., Knoxville, June 28 , 1999).

In all of these cases, there w as evid ence of som e type o f erratic drivi ng or weaving while driving, which could certainly be indicators of pos sible i ntoxicat ion. The only evide nce he re is that the Defen dant d ro ve on the white line af ter returni ng to the right l ane of traf fic. There was no evidence t hat the Defendant moved out of hi s lane. There was n o evidence that the Def endant was drivi ng erratically, weaving, or otherwise causing a hazard to o ther veh icles. Trooper Norrod specifi cally st ated at the suppression hear ing tha t he stop ped the Defendant for an improper lane change and for no ot her reason, indicat ing that he did not necessarily conc lude the driving on the whi te line was of partic ular-13-

signif icance. Driving on the white line might warrantan officer

in furt her observati on of a vehic le, but standing al one, it is not a sufficie nt and articula ble fact to warrant

the findi ng of reasonabl e suspicion t o stop an autom obile. We are reluctant

to conclu de that a p erson d riving in a m anner th at an off ice r de ems “i mp roper,” whe n the driv ing is not errati c or haphazard and does not create a dangerous situati on, is subject to seizur

e while proceeding along a hi ghway in a lawful manner. Only the hypothetical “perfectdriv er” wo uld not be subject to seizure if we were to hold that minor driv ing “er rors,” which neit her viol ate our traffic code nor creat e a hazard , indicate tha t a perso n migh t be intoxica ted. W e are not will ing to ignore t he guarantees of the Fourth Amendmentand in directly hold that “[t]he wo rd 'autom obile' is . . . a talism an in whose presen ce the F ourth Amendment fades away and disappe ars.” See Coolidge v. N ew Ham pshire , 403 U.S. 443, 461-62 (19 71). According ly, we must revers e the order of the trial court overruli ng the motion to suppres s, vacate the Defendant's conv iction s, and remand the case to the trial court for dismissalof the charges.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JOHN EVERETT WILLIAMS, JUDGE