State v. Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBE R SESSION, 1999

FILED
December 7, 1999

Cecil Crowson, Jr.
STATE OF TENNESSEE, ) C.C.A. # Appellate Court Clerk
M1999 01439 CCA R3 CD
)
Appellee, )
)
) DICKSON COUNTY
VS. )
) HON. ALLEN WALLACE,
RONALD WAYNE SMITH, ) JUDGE
)
Appe llant. ) (Certified Question-Search)

ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF DICKSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL J. FLANAGAN PAUL G. SUMMERS
95 White Bridge Road #208 Attorney General and Reporter
Nashville, TN 37205
ELIZABETH T. RYAN
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243

DAN ALSOBROOKS
District Attorney General

SUZANNE LOCKERT
Assistant District Attorney General
P.O. Box 580
Charlotte, TN 37036

OPINION FILED ________________________

REVERSED; CONVICTION VACATED

DAVID H. WELLES, JUDGE
 OPINION
The Defenda nt, Ronald W ayne Sm ith, pleaded guilty in the C ircuit Court

of Dickson County to possession of cocaine for resale and possession of

marijuana for resale, reserving a certified question of law pursuant to Tennessee

Rule of Criminal Procedure 37(b)(2)(i). The certified question of law is whether

there were su fficient spec ific and articu lable facts to justify the stop of the

Defe ndan t’s vehicle and/or whether the duration of the stop excessive. We find

that there were not sufficient specific and articulabe facts to justify the stop of the

Defe ndan t’s vehicle. Because we conclude that the stop was illegal, we reverse

the order of the trial judge overruling the motion to suppress.

Before pleading guilty in this case, the Defendant filed a mo tion to

suppress the evidence seized in the warrantless search of his vehicle, which

motion was denied by the trial court after a suppression hearing. The only

witness to testify at the hearing was Mark Norrod, the State Trooper who stopped

the Defendant’s vehicle. Trooper Norrod testified that he was patrolling Inte rstate

40, traveling ea stboun d, on O ctober 7 , 1997. H e was traveling behind the

Defe ndan t’s vehicle. He could not recall how much dist ance was b etwee n his

vehicle and the Defendant’s vehicle, but said that the Defendant’s vehicle was

“within eyesight.” He observed the Defendant’s vehicle change lanes twice

without giving a signal, while in the process of passing another vehicle. After the

Defe ndan t’s vehicle passe d the other vehicle and returned to the right lane of

travel, it was driving on the white line near the edge of the 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 accident by chang ing lanes without sig naling. He could not

remember the other vehicle applying brakes or taking any sort of evasive action

due to the Defendant’s vehicle passing it without signaling. Though he asserted

that the lane change was “improper,” Trooper Norrod did not classify this lane

change as a “fla grant v iolation .” He co uld no t recall for what distance the

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Defe ndan t’s vehicle drove on the white line, but he did admit that the Defendant

did not endanger himself or anyone else by driving on the white line. After

viewing the Defend ant make this lane chang e, Troope r Norrod stopped the

vehicle and started to give the Defendant a warning ticket for making an improper

lane cha nge.

At the suppression hearing, defense counsel attempted to clarify the

reason Trooper Norrod stopped the Defendant’s car, and the following colloquy

occurred:

Q. Was there anything else suspicious about the car other than the
way he changed lanes?
A. I’m sorry, what do you mean by suspicious?
Q. Anything suspicious 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, sir, that’s why I stopped him.
Q. There was no other reason, other than that, for you to stop him;
is that right?
A. Tha t’s correct.

Trooper Norrod asked the Defendant to get out of the car and move to the

rear of the car so that he could get away from the roadway while he wrote the

ticket. The Defendant locked the doors when he got out of the car. Trooper

Norrod engaged the Defendant in conversation while he w as prep aring the ticket.

The Defe ndan t told him that he had flown from Louisville, Kentucky to El Paso,

Texas to look for a friend; he then rented a car and was returning to Kentucky

when he could not find his friend. The car rental agreement required that the car

be returned in El Pa so in three days . The Defe ndant also told T rooper Norrod

that he was on disability. These comments made Trooper Norrod suspicious,

and he asked for consent to search the vehicle. The Defendant a greed to the

search, and when the Defendant opened the trunk, Trooper Norrod smelled a

strong odor of marijuana. He immediately placed the Defendant under arrest and

then unzipped a duffle bag in the trunk, where he discovered a large quantity of

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a substance believed to be marijuana. Another officer came to assist in the

search of the vehicle, and a substance believed to be cocaine was fo und a s well.

W hen Trooper 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 police car was automatically activated. 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 traffic and pulling off the road. No other traffic is seen

imm ediate ly around the D efendant’s ca r. On the tape, T rooper No rrod is heard

telling the Defendant that he pulled him over because he changed lanes without

signaling, he was “riding” the white line, and he did not know if the Defendant was

drunk or tired. He asked the Defendant to get out of the car and then engaged

the Defen dant in co nversatio n while he was pre paring th e ticket. Im media tely

after he han ded the Defen dant the ticket, he as ked if he c ould sea rch the ca r, to

which the Defendant replied, “yeah, sure.” The Defendant opened the car and

the trunk for Troop er Norrod, who le aned into the trunk a nd the n prom ptly

arrested the Defendant. The time between the stop and the arrest was

approximately seven minutes.1

After argument of counsel, the trial court issued its ruling. The judge began

with the follow ing statem ent:

You know, I look at this case a little different I think than both
of you do.
First off, this patrolman is out there on the road pa trolling, to
see what’s going on, and he sees a vehicle, not that he’s violated
the law, but that he’s not driving like ev erybody else. He’s hugging
the right line. It’s not a random stop. It’s not just random looking for
somebody. Here is a car kind of acting a little strange.
Now, what’s he going to do? Let it go, or follow him until he
runs off the road or som ething or just investiga te it? He’s not
looking for any violations of the law, he’s just inve stigating it. Here ’s
a car that has not been doing just right, so he puts his blue lights on
and pulls him over to investigate.

1
We find no merit to the Defendant's argument that the duration of the stop was
excessive. It is only the initial stop of the Defendant's vehicle that we find to be an
unreasonable seizure.

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The trial judge then found that Trooper Norrod was justified in becoming

suspicious of the De fendan t after talking to the Defendant for a few minutes and

further found that the search was consensual. He stated, “I can’t see anything

in this case, Mr. Quillen, that I think makes this stop and the ultimate search of

the car even constitutional [sic] suspect” and denied the motion to suppress.

When reviewing the grant or denial of a motion to suppress,

[q]uestions of credibility of the witnesses, the weight and value of the
evidence, and resolution o f conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact. The party prevailing
in the trial cour t is entitled to the stronge st legitimate view of the
evidence adduced at the suppres sion h earing as we ll as all
reaso nable and legitimate inferences that may be drawn from that
evidence. So long as the greater weight of the e vidence suppo rts
the trial cou rt’s findin gs, tho se find ings sh all be u pheld . In other
words, a trial court’s findings of fact in a suppression hearing will be
upheld unless the evidence preponderates otherwise.

State v. Odom, 928 S.W .2d 18, 23 (T enn. 1996 ). However, the application of the

law to the facts as found by the trial court is a question of law which the app ellate

court reviews de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)

(citing 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 the suppression hearing, the

facts presented at the hearing are basically undisputed . The refore , only

question s of law are at issue b efore this C ourt.

The Fourth Amendm ent to the United States Constitution provides:

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 seizures, shall not be violated, and no
warran ts shall issue, but up on pro bable cause, supported by oath or
affirma tion, and particularly describing the place to be searched, and
the persons or things to be seized.

Similarly, Article I, § 7 of the Tennessee Constitution guarantees

that the people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures; and that
general warrants, whereb y an officer m ay be co mm anded to search
suspected places, w ithout evide nce of the fact comm itted, or to
seize any person or persons not named, whose offences are not
particu larly described and supported by evidence, are dangerous to
liberty and ought not to be granted.

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The intent and purpose of the prohibition against unreasonable searches and

seizures found in the Tennessee Constitution has been found to be the same as

that found in th e Fourth Ame ndme nt to the Unite d States Constitu tion. State v.

Simpson, 968 S.W.2d 776, 779 (Tenn. 1998) (citing State v. Downey, 945

S.W.2d 102, 106 (Tenn. 1997); Sneed v. State , 423 S.W.2d 857, 860 (Tenn.

1968)). According to the Supreme Court, the purpose of the prohibition against

unrea sona ble searc hes a nd se izures in the Fo urth A men dme nt is to “safeguard

the privacy and security of individuals against arbitrary invasions of government

officials.” Cama ra v. Municipal Co urt, 387 U.S. 52 3, 528 (1967). The F ourth

Amendment protects people, not places, wherever they may have a “reaso nable

expectation of privacy.” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan,

J., concurring).

Under both the United States and Tennessee Constitutions, a search or

seizure condu cted witho ut a warrant 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 .2d 293, 295 (Tenn. 1992). Therefore, evidence

seized as a result of a search or seizure conducted without a warrant 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 exception to the warrant requirement is known as the autom obile

exception. In Carroll v. United States, 267 U.S. 13 2 (1925), the S upreme Court

held that police officers could search an automobile without a warrant if the

officers had probable cause to believe that the automobile contained contraband.

Carro ll v. United States, 267 U.S. 132, 149 (1925). Such a search is deemed

reasonable “because the vehicle can b e quickly move d out of the locality or

jurisdiction in which the warrant must be sought,” making it impractical to secure

a warrant before searching the autom obile. Id. at 153; see also Cham bers v.

Maroney, 399 U.S . 42, 51 (1970). In addition to the exigency created by the

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mobility of automobiles, the Supreme Court has upheld searches of automobiles

based in part on a notion that there is a “lesser expecta tion of p rivacy” in

automobiles. See California 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 that

a person has a

lesser expectation of privacy in a motor vehicle because its function
is transportation and it seldom serves as one’s residence or the
repository of perso nal effects . A car has little capacity for escaping
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 California v. Carney, a majo rity

of the Supre me C ourt expre ssly applie d both ra tionales to uphold the warrantless

search of a vehicle in a criminal investigation, explaining that persons have a

lesse r expe ctation of privac y in automob iles due “to the perva sive regulation of

vehicles capa ble of traveling on the public high ways.” Carney, 471 U.S. at 392.

W hile an individual in an automobile may have a “lesser expectation of

privacy,” that individual does not “lose all reasonable expectation of privacy”

when he or sh e enters that autom obile. See Delaware v. Prouse, 440 U.S. 648,

662 (1979). As the Suprem e Court has state d, “[w]ere th e individua l subject to

unfettered governmental intrusion every time he entered an automobile, the

security guarantee d by the Fourth Ame ndm ent wo uld be seriou sly

circum scribed.” Id. at 662-63. This is why individualized 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 constitutes

a seizure, even if the purpose of the stop is limited and the detention is brief.

Wren v. United States, 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 officer may stop or

“seize” an automob ile if the officer has probab le cause to be lieve that a criminal

offense has occurred or that a traffic violation has occ urred. Wren, 517 U.S. at

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810; Prouse, 440 U.S . at 655, 65 9; Vineyard, 958 S.W.2d at 734. If the officer

has probable ca use to believe that a violation of the traffic code has occurred, the

seizure will be upheld even if the sto p is a co mple te prete xt for the officer’s

subjective motivations in making the stop. Wren, 517 U.S. at 813-17 ; Vineyard,

958 S.W .2d at 734 -35.

In some circumstances, a police officer may also stop or “seize” an

individual in the absence of probable cause. In Terry v. Ohio , 392 U.S. 1, 30

(1968), the Su prem e Cou rt appr oved th e limited and tempo rary seizu re of a

person for questioning and for a “pat-down” for weapons if an officer has a

“reaso nable suspicion” that the person is armed a nd dange rous. The C ourt

assessed the reasonableness of the officer’s actions by “‘balancing the need to

search [or seize] against the invasion which the search [or seizure] entails.’” Id.

at 21 (quoting Cama ra v. Municipal Co urt, 387 U.S . 523, 534-35 (1967)). To

justify an intrusion into a person’s expectation of privacy, the officer must “point

to specific and articulable facts, which taken together with rational inferences

from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21. T his

limited Terry-type seizure doctrine has been expanded to allow limited and

temporary seizures of individuals for questioning if an officer has a reasonab le

suspicion that an individual has been involved in or is abo ut to be involve d in

criminal activity. See United S tates 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 reasonable suspicion, based on specific and

articula ble facts, that the occup ants have be en involved in or are about to be

involved in crimina l activity. Ornelas v. United 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).

“Reasona ble suspicion” is an objective standard, to be determined by

looking at the totality of th e circum stance s. United States v. Cortez, 449 U.S.

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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]rticulating precisely what “reasonable susp icion” a nd “pro bable
cause” mean is not possible. Th ey are commonsense, nontechnical
conceptions that deal with “the factual and practical considerations
of everyday life on which reasonable and prudent men, not legal
technicia ns, act.”

Ornelas, 517 U.S. at 695 (quoting Illinois v. Gates, 462 U.S. 21 3, 132 (1983 )).

Relevant factors to consider include the officer’s personal observations,

information obtained from other police officers or agencies, information obtained

from citizens, and the pa ttern of operation of 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 rational inferences and deductions that a trained officer

may dr aw from the facts a nd circum stance s know n to him. Id.

In this case, the seizure of the Defendant’s car was based entirely on

Trooper Norro d’s pe rsona l observations. Trooper Norrod testified that the

Defendant passed another vehicle on Interstate 40 w ithout signaling befo re

changing lanes to pass or before returning to the right-hand lane, and that the

Defendant was driving on the white line after returning to the right-hand lane of

traffic. Trooper Norrod could not say that the Defendant created a hazard by

changing lanes without signaling or by driving on the white line. On the videotape

of the encounter between Officer Norrod and the Defendant, Officer Norrod tells

the Defendant that he “did not know if [the Defen dant] wa s drunk or sleepy .” The

videotape briefly sh ows th e Def enda nt’s car driving d own the road with no other

vehicles in the near vicinity. Thus, on the basis of these facts, we must

determine whether there was either probable cause or reas onab le suspicio n to

justify the seizure of the Defendant’s vehicle.

As previous ly stated, if an officer h as prob able cau se to belie ve that a

violation of the traffic code has occurred, the seizure will be upheld even if the

stop is a complete pretext for the officer’s subjective motivations in making the

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stop. W ren, 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 he did not

signa l, yet we can find no auth ority for the pro position th at failing to give a signal

under the facts of this case constitutes a violation of the traffic code. The

relevant provision of the traffic code is as follows:

Turning movem ents. -- (a) No person shall turn a vehicle at an
intersection unless the vehicle is in proper position upon the
roadway as required in § 5 5-8-140, or turn a vehicle to enter a
private road or drivew ay, or otherwise turn a vehicle 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 giving an appropriate signal in 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 provision

provides:

Every drive r who inte nds to start, stop or turn, or partly turn from a
direct line, shall first see that such movement can be mad e in safety,
and whenever the operation of any other vehicle may be affected by
such movement, shall give a signal required in this section, plainly
visible to the driver of such other vehicle of the intention to make
such m ovem ent.

Tenn. Code Ann. § 55-8-143(a ) (empha sis added). Thus, the only time a driver

must signal before changing lanes appears to be when th at change will affect

other vehicles.

Here, the Defendant changed lanes to pass another vehicle on a four-lane

divided highway withou t first giving a signal. We do not believe this is an unusual

occurrence. There was no evidence that any other vehicles, other than the

Defe ndan t’s vehicle and the vehicle the Defendant passed, were in the near

vicinity. This was certainly not a situation in which the Defendant was changing

lanes during rush hour or oth er time of high traffic flow, whe re almost eve ry

movement of every vehicle will likely affect the travel of other vehicles on the

road. The v ehicle the Defendant passed was traveling in the right-hand lane of

traffic, with the Defendant behind it. When the Defendant moved into the left-

hand lane, his lane change would not have affected the forward travel of the other

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car. Similarly, when the Defendant changed back into the right-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 had to slow down, speed up, or

in any way alter its course due to the Defendant’s lane change. Therefore, the

Defendant did not violate a ny pro vision o f the traffic code by failing to signal, and

Trooper Norrod, by reason of his observ ations, did not have probab le cause to

believe that the Defendant violated a provision of the traffic code.

Similarly, Troop er Norro d did not h ave reas onable suspicio n to believe that

the Defendant was involved in or about to be involved in criminal activity, which

would have also justified the seizure. He appare ntly sugge sted to the Defendant

that he thought the Defendant might have been drunk or tired, b ut he in sisted in

the suppre ssion he aring tha t the only reason he stopped the Defendant was

because of an “improper” lane change. As already noted, the Defendant did not

violate any traffic provision by changing lanes without signaling. Making a

“lawful” lane change, which we equate somewhat to a “proper” lane change, as

described herein, could not give any officer reaso nable suspicion to believe that

an individu al is either drunk or tired. However, Trooper Norrod also testified that

the Defendant was driving on the white line after he returned to the right-hand

lane of traffic. Thus, we must determine whether driving on the white line after

making a lane change is a sufficient fact to warra nt reaso nable su spicion th at a

driver is either drunk or tired.

W e have previously considered the issue of reasonable suspicion in a

number of cases. For example, in State v. Carl Seaward Allen, C.C.A. No.

01C01-9707-CC-00272, 1998 WL 458177 (Tenn. Crim. App., Nashville, Aug. 7,

1998), a case involving this same police officer, Trooper Norrod testified that he

observed a vehicle change from the right to the left lane for no apparent reason

and then move back over into the right lane and cross the white line twice. He

turned on the video camera and recorded the vehicle twice veer over to the

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extreme right-hand side of the road across the white line. 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

that he thought the driver was either drowsy or under the influence of an

intoxicant. This C ourt uph eld the se izure, con cluding th at “given the time of nig ht,

crossing the fog line three times, and the distance from which the vehicle had

come, Officer N orrod ha d caus e to stop A ppelle e’s vehicle.” Id. at *3. In State

v. George Wesley Harville, C.C.A. No. 01-C-01-9607-CC-0030, 1997 WL 661726

(Tenn. Crim. App., Nashville, Oct. 24, 1997), we found the presence of

reaso nable suspicion when the officer observed a vehicle make a wide right turn

which resulted in the vehicle crossing the center line into the opposing lane of

traffic, causing another vehicle in the o ppos ing lan e to ho nk its ho rn. Th e vehic le

then began weaving within its lane of traffic and was “riding” the center line at

times. In State v. Ran dall L. M cFarlin , C.C.A. No. 01C01-9406-PB-00202, 1995

W L 353776 (Tenn. Crim. App. June 13, 1995), we found reasonable suspicion

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 highway and hitting a curb while making a sharp

right turn. Recently, we fou nd rea sona ble su spicio n whe n a veh icle was weaving

within its own lane of traffic, approaching the dividing 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 driving or

weaving while driving, which could certainly be indicators of possible intoxication.

The only evide nce he re is that the Defen dant drove on the white line after

returning to the right lane of traffic. There was no evidence that the Defendant

moved out of his lane. There was no evidence that the Defendant was driving

erratically, weaving, or otherwise causing a hazard to other vehicles. Trooper

Norrod specifically stated at the suppression hearing that he stopped the

Defendant for an improper lane change and for no other reason, indicating that

he did not necessarily conclude the driving on the white line was of particular

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significance. Driving on the white line might warrant an officer in further

observation of a vehicle, but standing alone, it is not a sufficie nt and articula ble

fact to warrant the finding of reasonable suspicion to stop an autom obile. We are

reluctant to conclu de that a p erson d riving in a m anner th at an officer deems

“improper,” when the driving is not erratic or haphazard and does not create a

dangerous situation, is subject to seizure while proceeding along a highway in a

lawful manner. Only the hypothetical “perfect driver” would not be subject to

seizure if we were to hold that minor driving “errors,” which neither violate our

traffic code nor create a hazard , indicate tha t a perso n migh t be intoxica ted. W e

are not willing to ignore the guarantees of the Fourth Amendment and 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

overruling the motion to suppress, vacate the Defendant's convictions, and

remand the case to the trial court for dismissal of the charges.

____________________________________
DAVID H. WELLES, JUDGE

CONCUR:

___________________________________
JOHN H. PEAY, JUDGE

___________________________________
JOHN EVERETT WILLIAMS, JUDGE

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