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Tennessee v Pucket


Basil Marceaux

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEEAT KNOXVILLEAssigned on Briefs May 21, 2003STATE OF TENNESSEE v. ALORRA D. PUCKETTDirect Appeal from the Criminal Court for Hamilton CountyNo. 238682      Douglas A. Meyer, JudgeNo. E2002-01959-CCA-R3-CDJuly 9, 2003In a certified question of law, the defendant challenges the traffic stop that resulted in her plea ofnolo contendere to DUI, first offense.  We hold the stop was unlawful and reverse the trial court’sjudgment.  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;Conviction VacatedTHOMAS T.WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR.,J., joined.  JOE G. RILEY, J., filed a dissenting opinion.Ardena J. Garth, District Public Defender; and Donna Robinson Miller (on appeal) and Lorrie DawnMiller (at hearing), Assistant District Public Defenders, for the appellant, Alorra D. Puckett.Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;William H. Cox, III, District Attorney General; and Carl Thomson Huskins, Assistant DistrictAttorney General, for the appellee, State of Tennessee.OPINIONOn the night of April 29, 2001, a police officer stopped the defendant after he observed herdriving for approximately one minute.  She was charged with DUI as a result of the stop.  Thedefendant presented a motion challenging the propriety of the traffic stop, which the trial courtdenied. The defendant later entered a plea of nolo contendere to DUI, first offense, but reserved thefollowing certified question of law as part of her plea: “Whether there were sufficient specific andarticulable facts to justify the stop of the defendant’s vehicle.”VEHICLE STOPThe Fourth Amendment to the United States Constitution grants the right to be secure fromunreasonable searches and seizures, and prohibits the issuance of warrants without probable cause.Article I, § 7 of the Tennessee Constitution is identical in purpose and intent with the FourthAmendment.  State v. Troxell, 78 S.W.3d 866, 870 (Tenn. 2002).  Under both constitutions, a-2-warrantless search or seizure is presumed to be unreasonable, and the resulting evidence is subjectto suppression unless the state demonstrates that the search or seizure was conducted pursuant to oneof the narrowly defined exceptions to the warrant requirement.  State v. Binette, 33 S.W.3d 215, 218(Tenn. 2000).These constitutional protections against unreasonable searches and seizures also apply tovehicles.  Troxell, 78 S.W.3d at 870-71.  A law enforcement officer must have probable cause orreasonable suspicion supported by specific and articulable facts to believe an offense has been oris about to be committed in order to stop a vehicle.  State v. Randolph, 74 S.W.3d 330, 334 (Tenn.2002).  In determining whether reasonable suspicion existed, a court must consider the totality ofthe circumstances.  Binette, 33 S.W.3d at 219.Initially, we note that the state in its briefurges the court to consider the costs of drunk driving against the limited intrusionupon motorists who themselves are put at risk by drunk drivers. . . . [W]hen there isa reasonable basis for further investigation, any intrusion on the privacy right of thatparticular individual who is stopped and evaluated is far outweighed by the benefitto every motorist on the highway. The state then directs us to various statistics relating to alcohol-related “crashes.”A stop may be initiated where there is a “reasonable basis for further investigation.”However, “the costs of drunk driving” and the statistical information provided by the State havenever been criteria for the analysis of a stop or seizure.  It appears the state is asking this court toconsider the danger to society by drunk drivers in analyzing the constitutional standards which mustbe met before a traffic stop may be initiated.  A motorist does not lose all reasonable expectation ofprivacy 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 influence indeed poses a grave danger to motorists,unfettered governmental intrusion upon constitutionally guaranteed liberties also poses a danger.See Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).  This courtcannot apply a different standard in reviewing the requirements for a traffic stop for a DUIinvestigation than we would apply in reviewing any other traffic stop.  The constitutional standardsare not lessened, nor does a governmental officer have broader authority, because the stop is for aDUI investigation.STANDARD OF REVIEWIn general, unless the evidence preponderates against them, the trial court’s findings of factin 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 issuesof credibility, such as a videotape, the appellate courts must examine the record de novo without apresumption of correctness.  Binette, 33 S.W.3d at 217.  If the issue involves an application of lawto undisputed facts, the appellate courts conduct a de novo review as to the question of law.  Troxell,78 S.W.3d at 870.-3-PROOF AT HEARINGOfficer Gary Martin of the Chattanooga Police Department’s DUI task force testified at thesuppression hearing that he was traveling behind the defendant when he observed her cross over theleft line of her lane of traffic.  Officer Martin stated he then activated the camera on his patrol carbefore the defendant “weaved to the right,” “track[ed] down” the right line, and “jerked [her car]back.”  We are unable to conclude that the defendant “jerked” her car back based upon our view ofthe videotape.  We further fail to observe any significant weaving or “tracking down” the right line.We, therefore, reject the testimony relating to these activities.  Officer Martin said the defendantsubsequently crossed the left line again before he pulled her over.  The videotape shows thedefendant’s vehicle touching the right white line, proceeding a considerable distance in her lane, andeventually either crossing or going on the left white line before Officer Martin stopped her.  Ourobservation of the videotape does not reveal any erratic driving.  Officer Martin observed thedefendant over the course of approximately one minute.ANALYSISThe defendant maintains the videotape established that she stayed within her lane and thatshe did not drive erratically.  Therefore, she argues, Officer Martin lacked reasonable suspicion tostop her vehicle.  Although the issue is close, we agree with the 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. LEXIS 693, at *19(Tenn. Crim. App. Sept. 8, 2000, at Knoxville), in support of her argument that a momentary lapsein a motorist’s driving, such as slight drifting within the lane of travel, driving on the white line, orbriefly leaving the lane of travel, does not, standing alone, constitute reasonable suspicion for atraffic stop. The defendant’s driving was similar to that in the above cases; thus, we consider thesecases controlling.We believe the facts of this case are distinguishable from those in State v. Gary S. Greve,No. E2002-00999-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Mar. 27,2003, at Knoxville).  In Greve, we upheld an investigatory stop where the defendant’s vehicleweaved in and out of its lane of travel three times in a short time span.  Id., at *9.Based upon our  de novo review of the videotape and our review of Officer Martin’stestimony, we conclude the evidence preponderates against the findings of the trial court which heldthat Officer Martin had a reasonable suspicion justifying his stop of the defendant’s vehicle.Accordingly, we reverse the judgment of the trial court and vacate the conviction.                                                                        THOMAS T. WOODALL, JUDGE


United States Supreme Court525 US 113, 119 S.Ct. 484, 142 L. Ed. 2d 492 (1998)             In this case the Supreme Court considers whether the Fourth Amendment permits a police officer to search an automobile that is stopped for a routine traffic offense in which the motorist is not arrested but merely issued a citation. Chief Justice Rehnquist delivered the opinion of the Court.             An Iowa police officer stopped petitioner Knowles for speeding, but issued him a citation rather than arresting him. The question presented is whether such a procedure authorizes the officer, consistently with the Fourth Amendment, to conduct a full search of the car. We answer this question “no.”             Knowles was stopped in Newton, Iowa, after having been clocked driving 43 miles per hour on a road where the speed limit was 25 miles per hour. The police officer issued a citation to Knowles, although under Iowa law he might have arrested him. The officer then conducted a full search of the car, and under the driver’s seat he found a bag of marijuana and a “pot pipe.” Knowles was then arrested and charged with violation of state laws dealing with controlled substances.             Before trial, Knowles moved to suppress the evidence so obtained. He argued that the search could not be sustained under the “search incident to arrest” exception recognized in United States v. Robinson, 414 U. S. 218 (1973), because he had not been placed under arrest. At the hearing on the motion to suppress, the police officer conceded that he had neither Knowles’ consent nor probable cause to conduct the search. He relied on Iowa law dealing with such searches.             Iowa Code Ann. §321.485(1)(a) (West 1997) provides that Iowa peace officers having cause to believe that a person has violated any traffic or motor vehicle equipment law may arrest the person and immediately take the person before a magistrate. Iowa law also authorizes the far more usual practice of issuing a citation in lieu of arrest or in lieu of continued custody after an initial arrest. See Iowa Code Ann. §805.1(1) (West Supp. 1997). Section 805.1(4) provides that the issuance of a citation in lieu of an arrest “does not affect the officer’s authority to conduct an otherwise lawful search.” The Iowa Supreme Court has interpreted this provision as providing authority to officers to conduct a full-blown search of an automobile and driver in those cases where police elect not to make a custodial arrest and instead issue a citation--that is, a search incident to citation. …             Based on this authority, the trial court denied the motion to suppress and found Knowles guilty. The Supreme Court of Iowa, sitting en banc, affirmed by a divided vote. … Relying on its earlier opinion in State v. Doran, 563 N. W. 2d 620 (1997), the Iowa Supreme Court upheld the constitutionality of the search under a bright-line “search incident to citation” exception to the Fourth Amendment’s warrant requirement, reasoning that so long as the arresting officer had probable cause to make a custodial arrest, there need not in fact have been a custodial arrest. We granted certiorari … and we now reverse.             The State contends that Knowles has challenged Iowa Code’s §805.1(4) only “on its face” and not “as applied,” in which case, the argument continues, his challenge would run afoul of Sibron v. New York, 392 U. S. 40 (1968). But in his motion to suppress, Knowles argued that “[b]ecause the officer had no probable cause and no search warrant, and the search cannot otherwise be justified under the Fourth Amendment, the search of the car was unconstitutional.” App. 7. Knowles did not argue below, and does not argue here, that the statute could never be lawfully applied. The question we therefore address is whether the search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment.             In Robinson, supra, we noted the two historical rationales for the “search incident to arrest” exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. … But neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case.             We have recognized that the first rationale--officer safety--is “‘both legitimate and weighty.’” … The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest. In Robinson, we stated that a custodial arrest involves “danger to an officer” because of “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.” … We recognized that “[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest.” … A routine traffic stop, on the other hand, is a relatively brief encounter and “is more analogous to a so-called ‘Terry stop’ ... than to a formal arrest.” …             This is not to say that the concern for officer safety is absent in the case of a routine traffic stop. It plainly is not. … But while the concern for officer safety in this context may justify the “minimal” additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. For example, they may order out of a vehicle both the driver, … and any passengers, … perform a “patdown” of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, … conduct a “Terry patdown” of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, … and even conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest. …             Nor has Iowa shown the second justification for the authority to search incident to arrest--the need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.             Iowa nevertheless argues that a “search incident to citation” is justified because a suspect who is subject to a routine traffic stop may attempt to hide or destroy evidence related to his identity (e. g., a driver’s license or vehicle registration), or destroy evidence of another, as yet undetected crime. As for the destruction of evidence relating to identity, if a police officer is not satisfied with the identification furnished by the driver, this may be a basis for arresting him rather than merely issuing a citation. As for destroying evidence of other crimes, the possibility that an officer would stumble onto evidence wholly unrelated to the speeding offense seems remote.             In Robinson, we held that the authority to conduct a full field search as incident to an arrest was a “bright-line rule,” which was based on the concern for officer safety and destruction or loss of evidence, but which did not depend in every case upon the existence of either concern. Here we are asked to extend that “bright-line rule” to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all. We decline to do so. The judgment of the Supreme Court of Iowa is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.