### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Bri efs May 21, 2003 STATE OF TENNESSEE v. ALORRA D. PUCKETT Direct Appeal from the Criminal Court for Ham ilton County No. 238682 Douglas A. Meyer, Judge

No. E2002-01959-CCA-R3-CD July 9, 2003
In a certi fied q uesti on of l aw, th e defen dant c halle nge s the traffic stop that resulted in her plea of nolo contende re to DUI, first offense. We hold the stop was unlawful and reverse the trial court’ s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Revers ed; Conviction Vacated
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., J., joined. J OE G. R ILEY , J., filed a dissenting opinion. Ardena J. Garth, District Public Defender; and Donna Robinson Miller (on appeal) and Lor rie Dawn Miller (a t hearin g), Ass istant Dist

rict Public

Defend ers, for the appe llant, Alo rra D. Pu ckett. Paul G. Summers , Attorne y General and Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y General ; William H. Cox, III , Di strict Attorney Ge neral; and Carl Thomson Huskins, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION
On the night of April 29, 2001, a police officer stopped the def endant after he

observed her driving for approxi mately one minute. She was c harged with DUI

as a result of the stop. The defendant presented a motion challenging the propr iety of the traf

fic stop, which the trial court denied. The defendant later entered a plea of nolo contendere to DUI, first offense, but re served the following certified question of law as part of her plea: “Whether there were sufficient specific and articulable facts to justify the stop of the defendant’s vehicle.”

VEHICLE STOP The Fourth A

mendment

to the United States Constitution grants the right to be secure from unreaso nable

search es and se izures, a nd prohibi

ts the issuance of warrants without probable cause

. Article I, § 7 of the Te

nnessee Constitution

is identic al in purp ose and in tent with th

e Fourth Amendmen

t. State v. Tr oxe ll , 78 S.W.3d 866, 870 (Tenn. 2002). Under both constitutions, a-2-

warran tless search or seizure is presumed to be unreasonable, and the resulting evidenc e is subject to suppression unless the state demonstrates that the search or seizure was conducted pursuant to one of the narrowly

definedexception s to the warrant requirement. State v. B inette , 33 S.W.3d 215, 218 (Tenn. 2000). The se co ns ti tu ti on al pr ot ec ti on s a ga in st un re as on ab le se ar ch es an d s ei zu re s a ls o a pp ly t o vehicle s. Troxell , 78 S.W.3d at 870-71. A law enforcement officer must have probable cause or reasona ble suspicion

supporte d by

specif ic and articulable facts to believe an offense has been or is about to be committed in order to stop a vehicle. State v. Randolph , 74 S.W.3d 330, 334 (Tenn. 2002). In de

termining whether reasona ble suspic ion existed, a court m ust consider the totality of the circumstances. Binette , 33 S.W.3d at 219. Initially , we note that the state in its brief urges the cour

t to consi der the costs of drunk driving aga inst the limited intrusion upon motorists who themselves are put at risk by dr unk drivers. . . . [W]hen ther e is a reasonable basis for

further investigation, any intrusion on the privacy

right of that particular individual who is stopped a nd evalua ted is far outweig hed by the benefit to every motorist on the hig hway. The state then directs us to various statistics relating to alcohol-relate d “crashes.”
A stop may

be initiated where there is a “reasonable ba sis for further investigation.” However, “the costs of drunk driving” and the statistical information provided by t he State have never been criteria for the analy sis of a stop or seizure. It appears the state is asking thi s court to consider the danger to society

by drunk driversin analy

zing the c onstitution al standa rds which must be met befo

re a tra ffic stop may be initiated. A motorist does not lose all reasonable expectation of privacy simply because he

or she enters an automobile. State v. Smith , 21 S.W.2d 251, 255 (Tenn. Crim. App. 1999). Although driving under the influenc e indeed

poses a g rave da nger to motorists, unfettered

governmental intrusion upon constitution al ly gua ranteed liberties also poses a danger

. See Delawa

re v. Prou se , 440 U.S. 648, 662-63, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). This court cannot apply a diffe

rent standard in reviewing the requirements for a traffic stop for a DUI investigation than we would apply in re viewing any

other traffic stop. The constitutional standards are not lessened, nor does a governmental officer have broader author ity, because the

stop is for a DUI investigation. STANDARD OF REVIEW
In general, unless the evidence pr eponderates against them, the trial court’s findings of fact in a suppression hearing will be upheld on appeal. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). However, where the trial court’s findings of fact are based on evidence that does not involve issues of credibility, such

as a videotape, the appellate courts must examine the record de novo without a presumption of correctness. Binette , 33 S.W.3d at 217. If the issue involves an application of law to undisputed facts, the appellate courts conduct a de novo review as to the questionof law. Troxell , 78 S.W.3d at 870.-3- PROOF AT HEARING Officer Gary Martin of the Chattanooga Police Department’s DUI task force testified at the suppression hearing that he was traveling behind the defendant whe n he observed her cross over the left line of her

lane of traffic. Officer Martin stated he then a ctivated the camera on his patrol car before the defenda nt “weaved to the right,” “trac k[ed] down” the right line, and “jerked [her car] back.” We are unable to conclude that the defendant “jerke d” her car back based upon our view of the videotape. We further fail to observeany signif icant weaving or “tracking down” the right line. We, therefore , r eject the testimony re lating to these activities. Officer Martin said the defe ndant subseque ntly crossed the lef

t lin e again before he pulled he r over. The videotape shows the defendant’s vehicle touching the right white line, proceeding a conside rable di stance i n her lane, and eventua lly either c ross ing or going on the left white line bef ore Officer Martin stopped her. Our observation of the videotape does not rev eal an y erra tic driving. Officer Martin observed the defendant over the course of appr oximately one minute. ANALYSIS The defendant maintains the videotape established that she staye d within her lane and that she did not drive erratic ally . Therefore, sh e argu es, Office

r Martin l acked r

easonab le suspic ion to stop her v ehicle. Although the issue is close, we agr

ee with th e defendant. The defendant relies upon Binette , 33 S.W.3d at 220, Smith , 21 S.W.3d at 258, and State v. Ann Elizabeth

Martin , No. E1999-01361-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 693, at *19 (Tenn. Crim. App. Sept. 8, 2000, at Knoxville), in support of her arg ument tha t a momenta

ry lapse in a moto rist ’s dri ving, such as slight drifting within the lane of travel, driving on the white line, or briefly le aving the lane of travel, does not, standing alone, constitute rea sonable suspicion for a traffic stop. The defendant’s driving was similar to that in the above cases; th

us, we co nsider these cases c ontro llin g. We believe the facts of this case are distinguisha ble from those in State v. G ary S. Greve , No. E2002-00 999-CCA- R3-CD, 200 3 Tenn. Cr im. App. L

EXIS 255 (Ten

n. Cr im. A pp. Mar. 27, 2003, at Knoxville). In Gre ve , we uphe ld an inve stigato

ry stop wher

e the def endant’ s vehicle weaved in and out of its lane of travel three times in a short time span. Id., at *9. Based upon our de n ovo revi ew of the videotape and our review of O fficer Martin’s te st im on y, we conclude the evidence preponde rates against the findings of the trial court

which held that Officer Martin had a reasonable suspicion justifying his stop of the defenda nt’s vehicle. Accordingly , we reverse the judgment of the trial c ourt and vacate the conviction.

THOMAS T. WOODALL , JUDGE