State of Tennessee v. Lindsey A. Ochab

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 19, 2016 Session

STATE OF TENNESSEE v. LINDSEY A. OCHAB

Appeal from the Circuit Court for Williamson County

No. I-CR068877 Joseph Woodruff, Judge

No. M2015-02290-CCA-R3-CD – Filed October 26, 2016

In this appeal, the State challenges the ruling of the trial court granting the defendant‟s

motion to suppress evidence and dismiss the two-count indictment charging the

defendant with driving under the influence (“DUI”) and driving with a blood alcohol

content greater than .08 percent (“DUI per se”). Because the trial court failed to consider

the effect of a search warrant and because, at any rate, probable cause supported the

defendant‟s arrest, the trial court erred by granting the defendant‟s motion to suppress.

The judgment of the trial court is reversed, and the case is remanded to the trial court for

further proceedings consistent with this opinion.

Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and TIMOTHY L. EASTER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant

Attorney General; Kim R. Helper, District Attorney General; and Tristan Poorman,

Assistant District Attorney General, for the appellant, State of Tennessee.

Roger Reid Street, Jr., and Elizabeth A. Russell, Franklin, Tennessee, for the appellee,

Lindsey A. Ochab.

OPINION

On March 14, 2014, Tennessee State Trooper Randy McDonald stopped the

defendant‟s car after he observed the defendant‟s vehicle cross the fog line, and, based

upon his observations of the defendant and her refusal to participate in field sobriety

tests, he placed the defendant under arrest for DUI. Trooper McDonald then obtained a

search warrant so that he could procure a sample of the defendant‟s blood for blood

alcohol testing.

In June 2015, the Williamson County Grand Jury charged the defendant

with alternative counts of DUI and DUI per se. On August 24, 2015, the defendant

moved the trial court court to suppress her “unlawful arrest” and to “dismiss the

indictment which resulted from” the unlawful arrest. In her motion, the defendant argued

that Trooper McDonald lacked probable cause to arrest her. The motion did not include

challenges to the search warrant that precipitated the drawing of the defendant‟s blood or

to the results of subsequent blood alcohol testing. Indeed, the motion did not include a

challenge to any specific piece of evidence.

At the October 30, 2015 hearing on the defendant‟s motion, Trooper

McDonald testified that at approximately 11:50 p.m. on March 14, 2014, he was traveling

north on Interstate 65 in Williamson County when he observed a vehicle “cross over the

fog line in the far right lane.” Trooper McDonald sped up to better observe the vehicle

and saw it “cross completely over the fog line again.” He then “fell in behind the vehicle

and it came over and touched the fog line at least 2 times.” At that point, Trooper

McDonald initiated a traffic stop.

Trooper McDonald approached the vehicle on the driver‟s side, and the

defendant, who was driving the vehicle, rolled down the window. She indicated that the

male passenger was her fiancé. Trooper McDonald immediately smelled “an obvious

smell of [an] alcohol beverage coming from the vehicle.” He said that the defendant “had

bloodshot, watery eyes, slurred speech, and smelled of alcohol.” The defendant denied

having consumed alcohol. She gave Trooper McDonald her driver‟s license, but neither

she nor her fiancé could initially locate the vehicle registration documents. Trooper

McDonald ran the defendant‟s driver‟s license and then backed up his patrol car and shut

off the front blue lights in preparation for asking the defendant to perform field sobriety

tests. He explained that at that point he believed the defendant to be intoxicated and that

her fiancé was “extremely intoxicated.”

When he approached the vehicle a second time, Trooper McDonald asked

the defendant to exit the vehicle so that he could speak with her further. He recalled that

when she stepped out of the vehicle, he again noticed the smell of an alcoholic beverage

coming from her person. He told the defendant that he could smell alcohol, and she again

denied that she had been drinking. She also denied having consumed any medication that

might have affected her ability to drive. Trooper McDonald asked the defendant if he

could check her eyes, and, although she initially “stood like she was going to let” him do

so, she then “decided that she wanted to decline” and “started talking about safety and

being on the side of the interstate.” He offered to transport her to a nearby location to

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perform the test and have the local police department sit with her vehicle and “keep an

eye on her intoxicated passenger,” who at that point had opened up the passenger‟s side

door and “was throwing up outside the car.” The defendant then flatly refused to perform

field sobriety tests in that or any other location. Trooper McDonald informed the

defendant that if she refused to perform the field sobriety tests, he would be unable to

“determine if she‟s okay to drive” and that he would have to arrest her for DUI.

Trooper McDonald explained, “From my training, my experiences,

bloodshot, watery eyes, her behavior, the odor, you know, I felt like I had, you know, I

felt she was under the influence.” He noted that the defendant was “unsteady on her feet

. . . more heavy footed than . . . anything else.” He described “heavy footed” as “if

you‟re working out and you‟re doing squats and you done your last set of squats, when

you get done well you‟re not swaying, you‟re not falling, you‟re not staggering, but your

legs are weak and your feet are heavy footed.” He said that he had “run across that on the

road with impaired people.”

Trooper McDonald said that he noticed the defendant‟s slurring her words

when she first spoke with him. That was when he initially observed that her eyes were

watery and appeared bloodshot. He said that he used his flashlight to see into the car but

did not shine the light into the defendant‟s eyes. He added that the interior light was on

in the car.

The video recording from Trooper McDonald‟s cruiser camera was

exhibited to the hearing. The video establishes that just eight minutes elapsed from the

time Trooper McDonald first approached the defendant to the time that the defendant was

placed under arrest. During that time, the defendant can be observed walking only briefly

from her vehicle to Trooper McDonald‟s cruiser. Her gait appears to be normal during

that walk. As to the defendant‟s speech, background noise and sound quality make it

impossible to rule out or confirm a slight slur in the defendant‟s speech. She does

stammer on occasion and is less than articulate when speaking with Trooper McDonald.

Trooper McDonald tells the defendant that he can still smell the odor of alcohol coming

from her person even when she is outside of the vehicle. It is impossible to discern

whether the defendant‟s eyes are glassy or bloodshot, as described by the trooper.

The affidavit of complaint contained within the application for a search

warrant, which appears in the technical record and which was referenced by the parties

and the trial court but which was not exhibited to the hearing, contains Trooper

McDonald‟s observations that the defendant smelled “moderate[ly]” of alcohol, that her

eyes were “[b]loodshot” and “[w]atery,” that her speech was “[s]lurred,” that her balance

was “[u]nsteady,” and that she was “[c]ombative” and “[i]nsulting” during their

interaction. Trooper McDonald indicated on the form document that the defendant

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refused both field sobriety tests and breath or blood alcohol testing. Based upon these

observations, the trooper asked that a warrant be granted to obtain a sample of the

defendant‟s blood for blood alcohol testing. A Williamson County Magistrate granted

the search warrant, and the defendant‟s blood was drawn at the Williamson Medical

Center at 1:52 a.m. The results of the blood alcohol test were not included in the record

on appeal.

At the conclusion of the hearing, the trial court found that Trooper

McDonald had reasonable suspicion to stop the defendant‟s vehicle based upon his

observations of her driving. The trial court accredited some of Trooper McDonald‟s

testimony but found that parts of his testimony were contradicted by the video recording

of the stop. The court found that Trooper McDonald‟s testimony that he smelled a strong

odor of alcohol coming specifically from the defendant‟s person was contradicted by his

statement in the video recording that he only smelled “a little bit” of an odor when the

defendant stepped out of the vehicle, where it was likely that some of the odor was

coming from the defendant‟s “extremely intoxicated” fiancé. The court noted that

Trooper McDonald‟s testimony that he smelled a strong odor of an alcoholic beverage

coming from the defendant‟s person as she was seated in the back of the patrol car could

not be part of the probable cause calculus because the defendant had already been placed

under arrest at that point. Based upon its viewing of the video, the court concluded that

the defendant did not have slurred speech, did not have dexterity issues when providing

her license and registration to the trooper, and did not stumble or sway when getting out

of her vehicle to walk to the back of the trooper‟s vehicle. The court observed that the

defendant‟s demeanor was not belligerent and that her clothing was not soiled or

otherwise in disarray. The court concluded “that there is no probable cause to believe

that the defendant had committed the offense of DUI at the time she was placed under

arrest.” As a result, the court “suppress[ed] the arrest and any evidence that was prepared

subsequent to that unlawful arrest.” The court did not address the search warrant when

making its ruling.

Following the trial court‟s ruling, the State announced that it could “not go

forward” based upon the court‟s ruling and asked the court to dismiss the indictment.

The trial court later entered a written order suppressing “all the evidence

obtained pursuant to the unlawful arrest of” the defendant on grounds that “Trooper

McDonald did not have probable cause at the time he arrested” the defendant.

In this appeal as of right by the State, the State contends that the trial court

erred by granting the defendant‟s motion to suppress, arguing that probable cause existed

to arrest the defendant. The defendant asserts that no appeal as of right lies for the State

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to challenge the ruling of the trial court and that, in the alternative, the trial court did not

err.

I. Jurisdiction

We consider first the defendant‟s claim that an appeal as of right does not

lie for the State in this case.

Rule 3, relative to appeals as of right by the State, provides:

In criminal actions an appeal as of right by the [S]tate lies

only from an order or judgment entered by a trial court from

which an appeal lies to the Supreme Court or Court of

Criminal Appeals: (1) the substantive effect of which results

in dismissing an indictment, information, or complaint; (2)

setting aside a verdict of guilty and entering a judgment of

acquittal; (3) arresting judgment; (4) granting or refusing to

revoke probation; or (5) remanding a child to the juvenile

court. The [S]tate may also appeal as of right from a final

judgment in a habeas corpus, extradition, or post-conviction

proceeding, from an order or judgment entered pursuant to

Rule 36 or Rule 36.1, Tennessee Rules of Criminal

Procedure, and from a final order on a request for expunction.

Tenn. R. App. P. 3(c). In State v. Meeks, our supreme court examined whether a trial

court‟s order suppressing evidence creates a situation where the “substantive effect” of

the order “results in dismissing an indictment, information, or complaint” pursuant to

Rule 3(c)(1) and concluded that it does not. State v. Meeks, 262 S.W.3d 710, 719-20

(Tenn. 2008). Instead, the high court held that “the entry of a final order dismissing the

indictment, information, or complaint is required for an appeal as of right under” Rule

3(c)(1). Id. at 720. The court specifically approved the procedure employed by the State

in Meeks:

After the State decided against pursuing the interlocutory

appeal from the November 9, 2005 suppression order, it

requested the trial court to dismiss the indictments against

Messrs. Meeks and Snyder, apparently because the District

Attorney General had concluded that the suppression of the

evidence found in Room 110 eliminated any reasonable

probability of a successful prosecution. In its May 19, 2006

order dismissing the indictments, the trial court specifically

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found that “the suppression of the evidence . . . does present

irreparable harm to the State‟s case in chief.” This order is a

final order, and, by its own terms, it resulted from the entry of

the November 9, 2005 suppression order. Accordingly,

following the entry of that order, the State was entitled to an

appeal as of right under [Rule] 3(c)(1).

Id. at 721.

In the present case, the State employed essentially the same procedure as

that employed in Meeks. After the trial court entered its order “suppress[ing] the arrest

and any evidence that was prepared subsequent to that unlawful arrest,” the State

indicated that it could “not go forward” in light of the court‟s ruling and asked the trial

court to dismiss the indictment. After the trial court entered an order of dismissal, the

State then filed a timely notice of appeal as of right pursuant to Rule 3 of the Tennessee

Rules of Appellate Procedure. In consequence, the State is entitled to an appeal as of

right under Rule 3(c)(1).

II. Irregularities

Having confirmed our jurisdiction in this case, we pause at this point to

observe irregularities in this case.

First, the motion filed by the defendant in the trial court was a motion to

dismiss more than a motion to suppress. The defendant moved the trial court to dismiss

the indictment merely because, she claimed, the arrest was unlawful. Dismissal of the

indictment, however, is not the proper remedy for an unlawful arrest. See State v. Baker,

966 S.W.2d 429, 432 (Tenn. Crim. App. 1997) (stating that “dismissal of the indictment

is not . . . the proper remedy for an allegedly unlawful arrest”); State v. Smith, 787

S.W.2d 34, 35 (Tenn. Crim. App. 1989) (“Generally, an illegal arrest does not invalidate

an indictment.”); Manier v. Henderson, 442 S.W.2d 281, 282 (Tenn. Crim. App. 1969)

(“The manner of arrest is immaterial to the validity of the indictment.”); Mullins v. State,

380 S.W.2d 201, 202 (Tenn. 1964) (“Numerous cases are in the books and otherwise

where defendants are prosecuted under indictments without being arrested prior to the

return of the indictments; defendants are indicted after being released at a preliminary

hearing; and in other cases defendants are prosecuted under indictments although the

initial arrest was invalid.” (emphasis added)). Instead, the appropriate remedy in the

criminal justice arena for an illegal arrest is suppression of any evidence obtained as a

direct or indirect result of the arrest. See Baker, 966 S.W.2d at 432 (“[T]he remedy for

an illegal arrest typically is not dismissal of the indictment but that evidence seized as the

result of an illegal arrest should be suppressed.”); Smith, 787 S.W.2d at 35 (“Evidence

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seized as a result of an illegal arrest is suppressed.”). When no evidence emanates from

an illegal arrest, the arrest is essentially inconsequential in the criminal justice arena.

Second, after finding that Trooper McDonald lacked probable cause to

arrest the defendant, the trial court suppressed “the arrest.” The phrase “suppress the

arrest” is a syntactical anomaly, and we presume this to be a misstatement by the trial

court.1 See Nelson v. State, 470 S.W.2d 32, 33 (Tenn. Crim. App. 1971) (observing that

“the law is settled in this State that there is no constitutional immunity from an unlawful

arrest”); see also Manier, 442 S.W.2d at 282 (“There is no constitutional immunity from

an unlawful arrest.”). Moreover, no basis existed to suppress Trooper McDonald‟s

testimony regarding his observations of the defendant prior to the point of any

constitutional infraction. That is to say that Trooper McDonald could have testified in

any subsequent trial about the defendant‟s behavior prior to her arrest, even assuming that

the arrest was invalid.

For our purposes, “suppress” means to exclude evidence.2 Ultimately, the

trial court suppressed “any evidence that was prepared subsequent to that unlawful

arrest.” Before making this ruling, however, the trial court failed to consider whether the

unlawful arrest actually tainted all the evidence prepared after the arrest. As indicated, in

this case, the defendant sought dismissal of the indictment and did not make a direct

challenge to any particular piece of evidence. One might assume that the defendant

wanted suppressed the results of blood alcohol testing that showed her blood alcohol

level to be above the legal limit; however, the defendant made no challenge to the search

warrant that was used to obtain the blood sample for blood alcohol testing.

The failure to address the efficacy of the search warrant renders the

“suppression” ruling infirm because, when a claim has been made that evidence is “fruit”

of an unlawful arrest, the evidence may nevertheless be admissible if it fits within one of

several recognized exceptions to the exclusionary rule. See Utah v. Strieff, 136 S. Ct.

2056, 2061 (2016). The question to be answered is “„whether, granting establishment of

1

After the hearing, the trial court entered an order suppressing “all the evidence obtained pursuant

to” the defendant‟s arrest, but we note that the defendant did not challenge the admission of the blood test

results.

2

From the oral argument before this Court, we glean that the defendant sought dismissal of the

charges solely on the ground that the arrest was illegal. As such, the effort suggests an attempt to obtain a

summary judgment, a result that is generally prohibited in criminal law. See State v. Goodman, 90

S.W.3d 557, 561 (Tenn. 2002) (“Where the factual findings necessary to resolve the [pretrial] motion are

intertwined with the general issue, a ruling must be deferred until trial since, in criminal cases, there

simply is no pretrial procedure akin to summary judgment for adjudicating questions of fact involving the

general issue of guilt or innocence.”). The trial court did not “take the bait,” and although it “suppressed

the arrest,” it did not dismiss the case pursuant to the defendant’s motion. The dismissal came at the

behest of the State.

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the primary illegality, the evidence to which instant objection is made has been come at

by exploitation of that illegality or instead by means sufficiently distinguishable to be

purged of the primary taint.‟” Brown v. Illinois, 422 U.S. 590, 598-99 (1975) (citation

omitted). By way of example, the Supreme Court explained,

Three of these exceptions involve the causal relationship

between the unconstitutional act and the discovery of

evidence. First, the independent source doctrine allows trial

courts to admit evidence obtained in an unlawful search if

officers independently acquired it from a separate,

independent source. Second, the inevitable discovery

doctrine allows for the admission of evidence that would have

been discovered even without the unconstitutional source.

Third, . . . is the attenuation doctrine: Evidence is admissible

when the connection between unconstitutional police conduct

and the evidence is remote or has been interrupted by some

intervening circumstance, so that “the interest protected by

the constitutional guarantee that has been violated would not

be served by suppression of the evidence obtained.”

Strieff, 136 S. Ct. at 2061 (citations omitted). Both the independent source doctrine and

the attenuation doctrine could be implicated in this case because Trooper McDonald

obtained a search warrant for the defendant‟s blood for blood alcohol testing.

“„In the classic independent source situation, information which is received

through an illegal source is considered to be cleanly obtained when it arrives through an

independent source.‟” Murray v. United States, 487 U.S. 533, 538-39 (1988) (quoting

United States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986)). In this case, based upon

Trooper McDonald‟s affidavit, the magistrate made a probable cause finding and issued

the search warrant, which, if valid, could have served to remove any taint associated with

the defendant‟s arrest. See United States v. Ponce, 947 F.2d 646, 651 (2d Cir. 1991)

(“[T]he intervening apparently illegal detention of defendants did not taint the subsequent

search because the police later obtained a valid search warrant.”). The presence of

information tainted by the allegedly illegal arrest in the trooper‟s affidavit would not

necessarily invalidate the warrant, so long as sufficient untainted information supported

the probable cause determination. See, e.g., United States v. Jenkins, 396 F.3d 751, 760

(6th Cir. 2005) (“In sum, authority from this and other circuits, as well as the principles

underlying the Murray rule, support an interpretation of the independent source rule that

incorporates consideration of the sufficiency of the untainted affidavit to see if probable

cause exists without the tainted information.”); United States v. Smith, 730 F.2d 1052,

1056 (6th Cir. 1984) (“[W]hen a search warrant is based partially on tainted evidence and

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partially on evidence arising from independent sources, „if the lawfully obtained

information amounts to probable cause and would have justified issuance of the warrant

apart from the tainted information, the evidence seized pursuant to the warrant is

admitted.‟” quoting United States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980)); see

also State v. Lemaricus Devall Davidson, No. E2013-00394-CCA-R3-DD, slip op. at 22

(Tenn. Crim. App., Knoxville, Mar. 10, 2015), app. pending (Tenn. argued Jan. 27,

2016).

“The attenuation doctrine evaluates the causal link between the

government‟s unlawful act and the discovery of evidence.” Strieff, 136 S. Ct. at 2061

(2016). When making this evaluation, a reviewing court considers three factors:

First, we look to the “temporal proximity” between the

unconstitutional conduct and the discovery of evidence to

determine how closely the discovery of evidence followed the

unconstitutional search. Second, we consider “the presence

of intervening circumstances.” Third, and “particularly”

significant, we examine “the purpose and flagrancy of the

official misconduct.”

Id. at 2061-62 (citations omitted). Importantly, a “valid search warrant” may be

sufficient to “purge the evidence of any „taint‟ arising from the” primary constitutional

violation. Segura v. United States, 468 U.S. 796, 814 (1984); see also Strieff, 136 S. Ct

at 2062 (“[T]he existence of a valid warrant favors finding that the connection between

unlawful conduct and the discovery of evidence is „sufficiently attenuated to dissipate the

taint.‟”).

Given that the search warrant in this case might have purged any taint

associated with the defendant‟s arrest, even assuming that the arrest was made without

probable cause, the failure of the trial court to address the validity of the search warrant

and its impact on the admissibility of the blood alcohol test requires us to vacate the trial

court‟s order and to remand the case for further proceedings. Given that a remand is at

hand, we now consider the propriety of the trial court‟s finding of a lack of probable

cause, discerning that such further review will assist the trial court on remand and will

facilitate any further review of this appeal.

III. Reasonable Suspicion/Probable Cause

Accordingly, we turn now to the State‟s claim that the trial court erred by

concluding that Trooper McDonald lacked probable cause to arrest the defendant and by

“suppress[ing] the arrest and any evidence that was prepared subsequent to that unlawful

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arrest.” The defendant contends that the trial court correctly suppressed the evidence and

dismissed the indictment, arguing that Trooper McDonald lacked probable cause to arrest

the defendant. The defendant also claims in her brief that Trooper McDonald lacked

reasonable suspicion to stop her vehicle in the first place.

When reviewing a trial court‟s findings of fact and conclusions of law on a

motion to suppress evidence, we are guided by the standard of review set forth in State v.

Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court‟s findings of fact

in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.

at 23. When the trial court does not set forth its findings of fact upon the record of the

proceedings, however, the appellate court must decide where the preponderance of the

evidence lies. Fields v. State, 40 S.W.3d 450, 457 n.5 (Tenn. 2001). As in all cases on

appeal, “[t]he prevailing party in the trial court is afforded the „strongest legitimate view

of the evidence and all reasonable and legitimate inferences that may be drawn from that

evidence.‟” State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith,

978 S.W.2d 861, 864 (Tenn. 1998)). We review the trial court‟s conclusions of law

under a de novo standard without according any presumption of correctness to those

conclusions. See, e.g., State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher,

989 S.W.2d 295, 299 (Tenn. 1999).

A. Reasonable Suspicion

We begin our analysis with the defendant‟s claim that Trooper McDonald

lacked reasonable suspicion to stop the defendant‟s vehicle.

At the suppression hearing, Trooper McDonald testified that he first

observed the defendant‟s vehicle while he was driving northbound on Interstate 65 in

Williamson County. At that time, he saw her vehicle “cross over the fog line in the far

right lane.” After speeding up to better observe the vehicle, he saw the defendant‟s

vehicle “cross completely over the fog line again.” Trooper McDonald then “fell in

behind the vehicle and it came over and touched the fog line at least 2 times.”

Police officers are constitutionally permitted to conduct a brief

investigatory stop supported by specific and articulable facts leading to reasonable

suspicion that a criminal offense has been or is about to be committed. Terry v. Ohio,

392 U.S. 1, 20-23 (1968); State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2002). Whether

reasonable suspicion existed in a particular case is a fact-intensive, but objective,

analysis. State v. Garcia, 123 S.W.3d 335, 344 (Tenn. 2003). The likelihood of criminal

activity that is required for reasonable suspicion is not as great as that required for

probable cause and is “considerably less” than would be needed to satisfy a

preponderance of the evidence standard. United States v. Sokolow, 490 U.S. 1, 7 (1989).

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A court must consider the totality of the circumstances in evaluating whether a police

officer‟s reasonable suspicion is supported by specific and articulable facts. State v.

Hord, 106 S.W.3d 68, 71 (Tenn. Crim. App. 2002). The totality of the circumstances

embraces considerations of the public interest served by the seizure, the nature and scope

of the intrusion, and the objective facts on which the law enforcement officer relied in

light of his experience. See State v. Pulley, 863 S.W.2d 29, 34 (Tenn. 1993). The

objective facts on which an officer relies may include his or her own observations,

information obtained from other officers or agencies, offenders‟ patterns of operation,

and information from informants. State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

Recently, our supreme court concluded “that crossing over a fog line with

two of a car‟s four wheels is an instance of leaving one‟s lane of travel” as prohibited by

Code section 55-8-123, State v. Smith, 484 S.W.3d 393, 404 (Tenn. 2016), and held that

“when an officer observes a motorist crossing a clearly marked fog line, the totality of the

circumstances may provide a reasonable suspicion sufficient to initiate a traffic stop to

investigate the possible violation of Section 123(1),” see id. at 410-11. The court

observed,

If the officer observes circumstances rendering it practicable

for the motorist to remain in her lane of travel, that

observation will weigh in favor of reasonable suspicion.

Similarly, if the officer observes that the motorist‟s crossing

of the fog line in some specific regard was unsafe, indicating

that the driver failed to first ascertain the safety of the lane

excursion, that observation will weigh in favor of reasonable

suspicion.

Id. at 411. The court stated that to determine whether crossing the fog line provided

reasonable suspicion for a traffic stop, a reviewing court must “consider, from the

position of a reasonable officer, the circumstances indicative of whether the driving

conditions facing the [d]efendant allowed her to remain entirely in her lane „as nearly as

practicable.‟” Id. at 413.

In this case, Trooper McDonald testified that he observed the defendant‟s

vehicle cross the fog line a total of four times. The video recording confirms that the

defendant‟s vehicle crossed the fog line on more than one occasion. No evidence

suggested that it was impracticable for the defendant to maintain her lane. No

obstruction appears in the roadway that would have required the defendant to cross the

fog line. The weather conditions were clear and dry. Based upon this evidence, we

easily conclude that the evidence established that the defendant “left her lane of travel

when it was practicable to remain there and/or left her lane of travel without first

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ascertaining that it was safe to do so.” See Smith, 484 S.W.3d at 412. Consequently, we

affirm the trial court‟s ruling that Trooper McDonald had reasonable suspicion to stop the

defendant‟s vehicle.

B. Probable Cause

We next consider the State‟s claim that the trial court erred by concluding

that Trooper McDonald lacked probable cause to arrest the defendant for DUI.

As our supreme court recently reiterated,

“Probable cause exists when „at the time of the arrest, the

facts and circumstances within the knowledge of the officers,

and of which they had reasonably trustworthy information,

are sufficient to warrant a prudent person in believing that the

defendant had committed or was committing an offense.‟ It

requires „more than a mere suspicion.‟ Instead, a probable

cause inquiry focuses on probabilities rather than

technicalities and is grounded in the factual and practical

considerations of everyday life on which reasonable and

prudent people, not legal technicians, act.”

State v. Davis, 484 S.W.3d 138, 143 (Tenn. 2016) (citations omitted). “To determine

whether an officer had probable cause to arrest an individual, we examine the events

leading up to the arrest, and then decide „whether these historical facts, viewed from the

standpoint of an objectively reasonable police officer, amount to‟ probable cause.”

Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v. United States, 517

U.S. 690, 696 (1996)). Our supreme court has “emphasize[d] that „the strength of the

evidence necessary to establish probable cause . . . is significantly less than the strength

of evidence necessary to find a defendant guilty beyond a reasonable doubt.‟” Davis, 484

S.W.3d at 143-44 (quoting State v. Bishop, 431 S.W.3d 22, 41 (Tenn. 2014)).

In this case, “[t]he question of whether the arrest was supported by

probable cause depends upon whether at the time the arrest was made there were facts

and circumstances within the officer‟s knowledge which would warrant a man of

prudence and caution in believing that the defendant had committed” DUI. State v.

Evetts, 670 S.W.2d 640, 642 (Tenn. Crim. App. 1984). To this end, “[a]ll information in

the officer‟s possession, fair inferences therefrom, and observations, including past

experiences, are generally pertinent.” Id.

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Although it is generally true that “[q]uestions of credibility of the

witnesses, the weight and value of the evidence, and resolution of conflicts in the

evidence are matters entrusted to the trial judge as the trier of fact,” see Odom, 928

S.W.2d at 23, “when a court‟s findings of fact at a suppression hearing are based solely

on evidence that does not involve issues of credibility, such as . . . videotape evidence . . .

the rationale underlying a more deferential standard of review is not implicated,” see

Binette, 33 S.W.3d at 217. “„In such circumstances, a trial court‟s findings of fact are

subject to de novo appellate review.‟” State v. Turner, 305 S.W.3d 508, 514 (Tenn.

2010) (quoting State v. Payne, 149 S.W.3d 20, 25 (Tenn. 2004)). Because the trial court

based its conclusion that Trooper McDonald lacked probable cause to arrest the

defendant on its own viewing of the video recording of the traffic stop, which is included

in the record on appeal, our review is de novo. See Turner, 305 S.W.3d at 514.

Here, Trooper McDonald testified that he observed the defendant‟s vehicle

weaving on Interstate 65, four times touching or crossing the fog line. When he

approached the defendant‟s vehicle after effectuating a traffic stop, he was immediately

struck by a strong odor of alcohol. Admittedly, the defendant‟s fiancé, who was in the

passenger‟s seat, was “extremely intoxicated.” Trooper McDonald said that even after

the defendant exited the vehicle, he could still smell an odor of alcohol emanating from

her person. Trooper McDonald testified that the defendant‟s eyes were glassy and

bloodshot, that her speech was slurred, and that she walked with a “heavy footed” gait.

The trial court concluded that the video recording belied the officer‟s

testimony regarding the defendant‟s odor of alcohol, her speech, and her gait. Upon our

de novo review of the video recording, we disagree. The recording is short, totaling

approximately eight minutes. The recording confirms that Trooper McDonald told the

defendant that he could still smell an odor of alcohol coming from her even after she got

out of the car and stood on the side of the interstate. The quality of the video recording is

insufficient, in our view, to determine whether the defendant‟s eyes appear glassy or

bloodshot, as claimed by Trooper McDonald. With regard to the defendant‟s gait, she is

seen walking on the video only a short distance from her vehicle to Trooper McDonald‟s

cruiser. She does not appear to be unsteady on her feet, and she certainly did not stagger.

We cannot say that she did not walk with a “heavy footed” gait, as described by the

trooper. With regard to the defendant‟s speech, again our review is somewhat hampered

by the sound quality in the video. A great deal of road noise is audible. The defendant‟s

speech is certainly not overly slurred, but she does stammer on several occasions and is

less than articulate as she speaks with Trooper McDonald. We agree with the trial court

that the defendant did not appear disheveled and did not struggle with dexterity when

retrieving her driver‟s license, but we note that Trooper McDonald never made any

claims with regard to the defendant‟s appearance or her manual dexterity. Based upon

the totality of the circumstances, we conclude that Trooper McDonald had probable cause

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to arrest the defendant. In consequence, we reverse the ruling of the trial court granting

the defendant‟s motion to suppress.3

Conclusion

The trial court erred by suppressing all evidence emanating from the arrest

without considering the effect of the post-arrest search warrant, and furthermore, under

the totality of the circumstances, probable cause existed for the defendant‟s arrest.

Accordingly, the judgment of the trial court is reversed, and the case is remanded to the

trial court for further proceedings consistent with this opinion.

_________________________________

JAMES CURWOOD WITT, JR. JUDGE

3

Because we have determined that the evidence otherwise establishes that Trooper McDonald had

probable cause to arrest the defendant, we do not consider the State‟s claim that the defendant‟s refusal to

perform field sobriety tests can be part of the probable cause calculus as it is in other states. See State v.

Babbitt, 525 N.W.2d 102, 105 (Wis. Ct. App. 1994) (“Thus, because the defendant‟s refusal to submit to

a field sobriety test is some evidence of consciousness of guilt, this evidence should be admissible for the

purpose of establishing probable cause to arrest.”); Jones v. Com., 688 S.E.2d 269, 272-73 (Va. 2010)

(“Accordingly, we hold that in determining whether a police officer had probable cause to arrest a

defendant for driving under the influence of alcohol, a court may consider the driver‟s refusal to perform

field sobriety tests when such refusal is accompanied by evidence of the driver‟s alcohol consumption and

its discernable effect on the driver‟s mental or physical state.”).

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