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# FILED
April 1, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1999 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 02C01-9803- CC-00085 ) ) Fayette County V. ) ) Honorable Jon Kerry

Blackwood, Judge ) FLOYD LEE WILLIAMSON, ) (Possession of Schedule VI w ith Intent to ) Deliver, Possess ion of Firearm with Intent to Appellant ) Go Armed, Possession of Schedul e II with ) Intent to Deliver, Evading Arrest) ) )

FOR THE APPE LLANT: FOR THE APPELLEE: ANDREW S. JOHNSTON JOHN KNOX WALKUP 108 E. Court Square Attorney General & Repor ter Somerville, TN 38068 ELIZABETH T. RYAN Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General 302 Market Street Somerville, TN 38068

OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIA MS, Judge-2- 

### O P I N I O N The defendant, Floyd Lee Williamson, appeals on a cer tified question of law. The defendant moved to suppre ss evidence found in a vehi cle that he was operating. After the Circ uit Court of Fayette County denied the motion, the defendant pleaded guilty to poss ession of a schedule VI substance w ith intent to deliver, possession of a schedule II controlled substance with intent to deliver, possession of a firearm with intent to go armed, and evadi ng arrest. The defendant appeals the trial court’ s ruling and argues that the initial stop of the vehicle was not a legitimate investigatory stop. We AFFIRM the trial court’s decision.

BACKGROUND Fayette County Sheriff’s Department Deputy Ricky Wilson responded to a suspicious vehicle r

eport and located a large v ehicle proceeding slow ly on a roadway approximate ly one-half mile from the repor ted area. Wilson testified that the area of the report was part of his patrol territ

ory. He further testified as to his experience with numerous incidents of burg laries, auto thefts, drug trafficking offenses, and other cri mes occurring in that l ocality. Wilson noted that the vehicle had Madison C ounty license tags and w as proceeding at approximately thirt

y miles an hour in a fifty -five miles per hour z

one.
Wilson followed the vehicle for approximately two miles and obse rved it on two or three occasions drift back and forth within its lane. The vehicle also crossed the marked center li ne of the roadway at least once. Wilson suspected that the driver was

intoxicated. He stopped the vehicle and conver sed with the driver, the defendant. Deputy Freeman, also of the Fayette Coun ty Sheriff’s Department, conversed w ith the passenger. The defendant stat ed that he and the passenger were en r oute to Mississippi to visit the passenger’ s girlfriend. The passenger advised Fr eeman that they were en route to visit a male friend. The deputies compared these conver sations and noted the conflicting1 The record submitted to thi s Court does not i nclude the Judgment. We will assume that the J udg me nt ref eren ces the O rder and t hus qualif ies th e plea as be ing co nting ent o n the appe al. -3- statements. Both the defendant and the passeng er consented when the deputie s requeste d permiss ion to sea rch the veh icle. W ilson sta yed with the two subjects, and Freeman searched the vehicle. Freeman ret urned and advised Wilson to place the two subjects on the hood of the car. The defendant immediately fled on foot and was not located until after Freeman obt ained a warrant for that subject’ s arrest.

In the vehicle, Freeman had found a bag containing a handgun, approximately on e hundred rocks of suspected crack cocaine, an d thirteen bags of suspected marijuana. Freeman obtaine d the warrant for the defendant’s arrest. Neither Fre eman nor the d efendant te stified at the hearing.
The defendant’s passenger, who ac tually owned the v

ehicle, testified at the hearing and denied that the v ehicle swerved w

hile the deputy followed the car. He also testified that,in the area “right before” the stop, the speed limit w as forty mil es per hou r and that the def endant wa s driving at approxim ately thir tyfive to forty miles per h our in that zone.

After the trial court denied the defendant’s motion to suppress ev idence, the defendant apparently pleaded gu ilty to the enumerated char ges and reserved h is appea l on a cert ified que stion of law. 1

STANDARD OF REVIEW A trial court’s determination at a suppression hearing “is presumptively correct on appeal.” State v. Stephenson , 878 S.W.2d 530, 54 4 (Tenn. 1994). This Court upholds a trial court’s decision “unless the evidence in the record preponderates against the finding.” State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998). “Questions of cred ibility of witness es, the weight and v

alue of the evidence, and resolution of c onflicts in the evidence ar e matters entrusted to the trial judge as the trier of fact.” Id. “The party prevailing in the trial court is2 W e do not a ddress whethe r this ques tion is dispo sitive for the e vading a rrest cha rge. Our ho lding rend ers the iss ue m oot. -4- entitled to the strongest v iew of the evidence, as w ell as all reasonable and legitimate inferences that may be drawn from the evidence.” Id. However, this Court reviews de novo the application of law to those determined facts. State v. Yeargan , 958 S.W.2d 626, 62 9 (Tenn. 1997).

ANAL YSIS The defendant presents his certified q uestion under Tenn. R. Crim. P. 37(b)(2)(iv): An appeal lies from any order or judgment in a criminal proceeding where the law prov

ides for such appeal, and from any judgment of conviction: . . . (2)

Upon a plea of guilty or nolo contendere if: . . . (iv) Defendant expli citly reserved w ith the consent of the court the right to appeal a certifie d question of law that is dispositive of the case. A defendant entering a guilty plea not subject to a plea ag reement may reserve, with the court’s permi ssion, an appeal on a certified q uestion of law. The certified question must “c learly identify the s

cope and the limits of the legal issue reserved.” State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988).
The certified question is di spositive: The trial c ourt’s suppression of the evidence would dispos e of the state’s case. An issue is dispositive w hen the appellate court must either affirm or reverse and dismiss

. See State v. Wilkes , 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984). An improper stop mandates suppression of this evidenc e, and, on the record submitted to this Court, the state’s case against the appellant as regards the c ontrolled substances and the handgun would necessarily fail. 2 See State v. Dennis Keith and Ti mothy Collins , No. 02S01-9604-CC-00035 (Tenn. Crim. App. filed Se pt. 28, 1998, at Jackson). The cert ified que stion inqu ires wheth er “the De fendan t was unlawf ully

and unco nstituti onally sto pped as s aid stop wa s not a legi timate in vestigative stop.” The defendant limits his c omplaint to the validity

of the actual stop and-5- contests neither the subseq uent detention nor the search.
An officer using his blue li ghts to stop a vehicle “seizes” that veh icle and thereby invokes analy

sis of the reasonableness of the stop under the protection granted by the Fourth Amendment to the United States Constit ution. See State v. Pully , 863 S.W.2d 29, 30-31 (Tenn. 1993). Howev er, “the reasonableness of seizures less intr

usive than a full-scale a rrest is judged by weighing the gr

avity of the public concern, the degr ee to which the seizur

e advances that concern, and the severity of the intrusion into individual privacy.” Id. at 30.

In the instant case, the defendant challen ges Wilson’s reasonable suspicion for the investi gatory stop. A suspi cious vehicle complaint prompted Wilson’s searching the area for that v ehicle. On his locating a vehicle consistent with the reported gener al description, he observ ed that vehicle proceeding at little over one-half the p osted speed limit. Such operat ion of the vehicle was “not unlawful” but “qualified

as unusual” and may legi timately be considered by a trier of fact in its determining the r easonableness of a stop. State v. Greer , No. 01C01-9404-CR-00140 (Tenn. Cr im. App. filed June 15, 1995, at Nashv ille). Wilson also observed the vehicle weaving, once cro ssing over the marked center line of the roadway. A driver’s weaving “more than twice,” even if his vehicle remains in his lane of traffic, “lends credence to the potential for a drunk driver.” State v. Jenkins , No. 01C01-9712-CR-00590 ( Tenn. Crim. App. filed Dec. 21, 1998, at Nashville).
Wilson articulated the specific bases for hi s reasonable suspicion that the driver was intoxicated. A trial court evaluating the validity of an officer’s reasonable suspicion, and thus the validity of the ini

tial interference with a defendant’s liberty, “must consider the totality of the circumstan ces,” which includes “the officer’s pers onal objective observ

ations, . . . the pattern of operation of certain offenders,” and “ the rational inferences and deduct ions that a trained officer may draw from the facts and circumstan ces known to him--- inferences and deductions that might well elude an untrained person.” State v.-6- Simpson , 968 S.W.2d 776, 783 (Tenn. 1998).

The trial court resolv

ed the conflict between Wilson’s testimony and the passenger’s contradict ing testimony in favor of the State’s case. Wilson articulated specific facts for h is reasonable suspicion and subsequent stop, and the defendant’s appeal lacks the re quisite preponderance of ev idence for overturning the tri al court’s holding. Thi s issue is without mer it.

CONCLUSION Based on the foregoing, the judgment below is AFFIRMED.

____________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

_____________________________ JOE G. RILEY, Judge

_____________________________ DAVID G. HAYES, Jud ge