STATE of Tennessee v. Linzey Danielle SMITH
No. M2013-02818-SC-R11-CD
Supreme Court of Tennessee, at Nashville
September 30, 2015 Session, Filed February 11, 2016
484 S.W.3d 393
Herbert H. Slatery III, Attorney General and Reporter; Andre S. Blumstein, Solicitor General; Leslie E. Price, Senior Counsel; Kim R. Helper, District Attorney General; and Carlin Hess, Assistant District Attorney, for the appellee, the State of Tennessee.
OPINION
JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and CORNELIA A. CLARK and HOLLY KIRBY, JJ., joined.
We granted permission to appeal in this case to determine whether the traffic stop of the Defendant, Linzey Danielle Smith, violated the constitutional rights of the Defendant. The arresting officer initiated the stop after observing the Defendant once cross and twice touch the fog line2 marking the outer right lane boundary on an interstate highway. After being pulled over, the Defendant was charged with alternative counts of driving under the influence. The Defendant filed a motion to suppress, contending that the traffic stop was unconstitutional. After a hearing, the trial court denied the motion to suppress. The Defendant then pleaded guilty to driving under the influence and reserved a certified question of law regarding the legality of her traffic stop. The Court of Criminal Appeals affirmed the judgment. We hold that the traffic stop was supported by reasonable suspicion and therefore met constitutional requirements. Accordingly, we affirm the Defendant‘s judgment of conviction.
Factual and Procedural History
The Defendant was charged in July 2013 with two alternative counts of driving under the influence. The Defendant filed a motion to suppress on the basis that her traffic stop was unconstitutional. At the ensuing hearing, held in October 2013, the following proof was adduced:
Trooper Chuck Achinger of the Tennessee Highway Patrol testified that, at approximately 3:00 a.m. on December 6, 2012, he was travelling north on I-65 in Williamson County, Tennessee. As he neared the 72 mile marker, he noticed a car in front of him “drift over towards the shoulder” as it entered a “big swooping curve.” He then observed the vehicle cross the fog line “by less than six inches, probably.” As the car came out of the curve, “it corrected itself back into its lane, and then it drifted back over to the right and almost went all the way over the fog line again. It corrected itself. And then, again, it went back over and just barely touched the fog line again.” Trooper Achinger clarified that, when the car crossed the fog line, both tires on the right side of the car crossed the line “[e]ntirely.” Trooper Achinger observed this driving behavior over the course of four to five tenths of a mile. He acknowledged that the Defendant‘s driving did not endanger any other vehicles.
Trooper Achinger continued to follow the car for approximately two more miles and observed no further driving infractions. Nevertheless, he stopped the vehicle after it exited the interstate. He testified that he stopped the driver because she failed to maintain her lane of travel as required by
The trial court accredited Trooper Achinger‘s testimony and determined that he had probable cause to stop the Defendant based on his observation of the car crossing the fog line, thereby violating
Whether the stop of Defendant‘s vehicle by trooper Charles C. Achinger of Tennessee Highway Patrol on December 6th, 2012, violated Defendant‘s rights granted pursuant to the Fourth Amendment to the U.S. Constitution and Article I, Section[ ] 7 of the Tennessee Constitution and whether any evidence, statements and blood tests obtained as a result of said stop should be suppressed as the fruits of an unconstitutional seizure, due to the fact that there was no probable cause that a traffic violation ha[d] been committed under
Tenn.Code Ann. 55-8-231(1) , and there was no reasonable suspicion based on the totality of the circumstances, where Defendant was observed driving on a winding and sloping portion of a roadway for a distance of approximately 2.5 miles.
The Court of Criminal Appeals affirmed the trial court‘s judgment on the merits, with one judge dissenting. See State v. Smith, No. M2013-02818-CCA-R3-CD, 2015 WL 412972, at *9 (Tenn.Crim.App. Feb. 2, 2015). We subsequently granted the Defendant‘s application for permission to appeal.
Standard of Review
We will uphold a trial court‘s findings of fact at a suppression hearing unless the evidence preponderates to the contrary. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). “Questions 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.” Id. “We afford to the party prevailing in the trial court the strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn.1998). As to the trial court‘s application of the law to the facts, however, we apply a de novo standard of review. Id.
Analysis
Warrantless Seizures
The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall issue, but upon probable cause.”
Likewise, Article I, Section 7 of the Tennessee Constitution provides that “the people shall be secure in their persons ... from unreasonable searches and seizures.”
Individuals do not lose their constitutional protections against unreasonable searches and seizures by getting into an automobile. See Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Therefore, when a police officer seizes a motorist by turning on his blue lights in order to pull the motorist over, the stop must pass constitutional muster. See State v. Pulley, 863 S.W.2d 29, 30 (Tenn.1993). The reasonableness of such seizures, and therefore their legality, “depends on a balance between the public interest and the individual‘s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (citing Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara, 387 U.S. at 536-37).
Probable Cause and Reasonable Suspicion
A police officer‘s traffic stop of a motorist will pass constitutional muster if the officer has “probable cause” to believe that the motorist has committed a traffic offense. See State v. Vineyard, 958 S.W.2d 730, 736 (Tenn.1997) (holding that officers’ observation of defendant‘s violations of traffic laws created probable cause to stop defendant); see also United States v. Barry, 98 F.3d 373, 376 (8th Cir.1996) (recognizing that even minor traffic violations create probable cause to stop the driver); State v. Berrios, 235 S.W.3d 99, 105 (Tenn.2007) (recognizing that, “[a]s a general rule, if the police have probable cause to believe a traffic violation has occurred, the stop is constitutionally reasonable” (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996))). “Articulating precisely what ‘probable cause’ mean[s] is not possible.” Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 91 (1996). Rather, probable cause is a “practical, nontechnical” concept. State v. Jacumin, 778 S.W.2d 430, 432 (Tenn.1989) (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). As we recently reiterated, “probable cause exists when ‘at the time of the [seizure], 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.‘” State v. Dotson, 450 S.W.3d 1, 50 (Tenn. 2014) (quoting State v. Echols, 382 S.W.3d 266, 277-78 (Tenn.2012)).
Many of our traffic statutes create offenses which render it simple for an officer to determine whether a motorist has committed a violation. For instance,
Some driving conduct, however, may or may not constitute a traffic offense. For instance, a police officer patrolling late at night may observe a driver weaving within her own lane of travel, driving below the speed limit, and engaging in prolonged delays at four-way-stop intersections in spite of the absence of any other traffic. While this driving behavior may not violate any of our “rules of the road” statutes, see
If a police officer lacks probable cause to seize a motorist, he nevertheless may legitimately initiate a brief, investigatory traffic stop if he possesses a “reasonable suspicion, supported by specific and articulable facts, that a criminal offense has been or is about to be committed.” State v. Binette, 33 S.W.3d 215, 218 (Tenn.2000) (citing Terry, 392 U.S. at 20-21; State v. Bridges, 963 S.W.2d 487, 492 (Tenn.1997)). Unlike the examples above in which a police officer has probable cause to stop a motorist in order to issue a citation, reasonable suspicion stops are investigatory in nature.
“The level of reasonable suspicion required to support an investigatory stop is lower than that required for probable cause.” State v. Day, 263 S.W.3d 891, 902 (Tenn.2008) (citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Pulley, 863 S.W.2d at 31). Nevertheless, “[r]easonable suspicion is a particularized and objective basis for suspecting the subject of a stop of criminal activity,” Binette, 33 S.W.3d at 218 (emphasis added) (citing Ornelas, 517 U.S. at 696), and must be “something more than the officer‘s ‘inchoate and unparticularized suspicion or hunch,‘” Day, 263 S.W.3d at 902 (quoting Terry, 392 U.S. at 27). Ac-
“The evaluation [of reasonable suspicion] is made from the perspective of the reasonable officer, not the reasonable person.” United States v. Quintana-Garcia, 343 F.3d 1266, 1270 (10th Cir.2003); see also United States v. Valdez, 147 Fed. Appx. 591, 596 (6th Cir.2005). Moreover, because a court reviews the validity of a stop from a purely objective perspective, the officer‘s subjective state of mind is irrelevant, see Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), and the court may consider relevant circumstances demonstrated by the proof even if not articulated by the testifying officer as reasons for the stop, see City of Highland Park v. Kane, 372 Ill.Dec. 26, 991 N.E.2d 333, 338 (Ill. App.Ct.2013) (recognizing that, “[i]n analyzing whether a stop was proper, a court is not limited to bases cited by the officer for effectuating the stop” (citing Whren, 517 U.S. at 813)); see also State v. Huddleston, 924 S.W.2d 666, 676 (Tenn.1996) (recognizing that an officer‘s subjective belief that he did not have enough evidence to obtain a warrant is irrelevant to whether or not probable cause actually existed“). Additionally, if the defendant attempts to suppress evidence collected during the challenged stop, the state is not limited in its opposing argument to the grounds ostensibly relied upon by the officer if the proof supports the stop on other grounds. See State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004).
Tennessee Code Annotated Section 55-8-123
In State v. Davis, released simultaneously with this case, this Court determined that
Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules, in addition to all others consistent with this section, shall apply:
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety[.]
In order to address whether an officer has constitutional grounds to stop a motorist for violating Section 123(1), we first must determine what, precisely, this statute prohibits.6 This is an issue of first impression before this Court.
The role of this Court in statutory interpretation is to assign a statute the full effect of the legislative intent without restricting or expanding the intended scope of the statute. State v. Springer, 406 S.W.3d 526, 533 (Tenn.2013); State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010). In doing so, we must look to the plain language of the statute to determine the legislature‘s intent: State v. Jennings, 130 S.W.3d 43, 46 (Tenn.2004). We must presume that “every word in the statute has meaning and purpose and should be given full effect if the obvious intent of the General Assembly is not violated by so doing.” Marshall, 319 S.W.3d at 561 (quoting Larsen-Ball v. Ball, 301 S.W.3d 228, 232 (Tenn.2010)) (internal quotation marks omitted). When the language of a statute is clear and unambiguous, “the legislative intent shall be derived from the plain and ordinary meaning of the statutory language.” State v. Wilson, 132 S.W.3d 340, 341 (Tenn.2004).
We begin our analysis by taking into consideration various other statutes that are related to Section 123(1). “Roadway” is defined as “that portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the berm or shoulder.”
[i]t is unlawful and, unless otherwise declared in this chapter and chapter 10,
parts 1-5 of this title with respect to particular offenses, it is a Class C misdemeanor, for any person to do any act forbidden or fail to perform any act required in this chapter and chapter 10 of this title.
Initially, we have no trouble concluding that crossing over a fog line with two of a car‘s four wheels is an instance of leaving one‘s lane of travel. However, unlike the statute at issue in Davis, Section 123(1) does not create an offense that always may be discerned simply by observation. Accord People v. Hackett, 361 Ill.Dec. 536, 971 N.E.2d 1058, 1066 (Ill.2012) (stating that “it is clear that [Illinois’ version of Section 123(1)] is not a strict liability offense” (citing 625 Ill. Comp. Stat. Ann. 5/11-709(a) (West 2008))); State v. Marx, 289 Kan. 657, 215 P.3d 601, 612 (Kan.2009) (stating that Kansas’ version of Section 123(1) “is not a strict liability offense” because the “express language employed—‘as nearly as practicable‘—contradicts the notion that any and all intrusions upon the marker lines of the chosen travel lane constitute a violation” (citing
In construing New Jersey‘s virtually identical “as nearly as practicable” statute,7 the New Jersey Supreme Court has concluded that the statute “contains two separate legal predicates directing the conduct of drivers: ‘shall be driven’ in the first clause and ‘shall not be moved’ in the second.” State v. Regis, 208 N.J. 439, 32 A.3d 1109, 1114 (N.J.2011). The New Jersey court continued:
The statute‘s two clauses address different circumstances. The first clause imposes a continuous requirement upon the driver: to maintain his or her vehicle in a single lane, by avoiding drifting or swerving into an adjoining lane or the shoulder, unless it is not feasible to do so.
. . . .
Moreover, the first clause of
N.J.S.A. 39:4-88(b) is not limited to circumstances in which the deviation from the lane is demonstrated to be a danger to other drivers. . . . By the terms of the first clause ofN.J.S.A. 39:4-88(b) , the
mandate to drive within a single lane to the extent practicable applies, whether or not a deviation from that lane imposes a risk to another driver.
The statute‘s second clause addresses a related, but discrete, mandate of the Code. It requires a driver to ascertain the safety of switching lanes before conducting a lane change.
N.J.S.A. 39:4-88(b) . Unlike the violation described in the first clause ofN.J.S.A. 39:4-88(b) , the violation described in the second clause is avoided if a driver, in a roadway with multiple lanes traveling in the same direction, first determines that departure from a lane may be conducted safely.
Id. at 1114-15 (footnote omitted).
Similarly, in construing Kansas’ virtually identical “as nearly as practicable” statute,8 the Kansas Supreme Court held as follows:
[W]e interpret
K.S.A. 8-1522(a) as establishing two separate rules of the road. The first requires a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes. That rule is temporarily suspended when it becomes impracticable to stay within the lane markers and when the driver is properly effecting a lane change. . . . The second rule provides that before a driver may change lanes or move from the current lane of travel to another location, he or she must ascertain that the movement can be made with safety. A traffic infraction occurs underK.S.A. 8-1522(a) when either rule of the road is violated.
Marx, 215 P.3d at 612 (emphasis added); see also State v. McBroom, 179 Or.App. 120, 39 P.3d 226, 229 (Or.Ct.App.2002) (stating that the second provision of Oregon‘s version of Section 123(1) does not permit a motorist to “stray” outside his lane of travel even if the straying is accomplished safely (citing
We recognize that other courts, in effect, have combined the two contingencies of their jurisdiction‘s version of Section 123(1) and concluded that a violation occurs only when there is proof that the motorist‘s lane excursion created some level of danger.9 See, e.g., United States v.
Noting the confusion surrounding the interpretation of various states’ versions of Section 123(1), one of Wyoming‘s Supreme Court Justices opined that
[T]his is one bizarre statute. Apparently, it is not a crime if one violates the statute a little bit, but it is a crime if one violates the statute somewhat more than a little bit. If you stay in your lane, you have not violated the statute, but if you go out of your lane, you may have violated the statute. In the context of the present case, if the appellant‘s conduct may or may not have provided the officer with reasonable suspicion and/or probable cause to believe that the appellant violated the statute, how on earth is the appellant supposed to have notice, before the fact, that his conduct will violate the statute?
Dods v. State, 240 P.3d 1208, 1213 (Wyo. 2010) (Voigt, J., concurring). We note that there has been no constitutional challenge to Section 123(1) raised in this case.
If
N.J.S.A. 39:4-88(b) prohibits nothing more than a lane change conducted unsafely as described in the statute‘s second clause, then the Legislature‘s language in the first clause would have no meaning. . . . The Court‘s construction ofN.J.S.A. 39:4-88(b) gives meaning to all of the statute‘s language, and thereby effects the intent of the Legislature. Moreover, ifN.J.S.A. 39:4-88(b) precludes only unsafe lane changes, a driver would not violate the statute even by allowing a vehicle to straddle two lanes or swerve back and forth over the lines defining traffic lanes, unless that conduct created a safety issue.
Clearly, the primary purpose of Section 123(1) is to enhance highway safety. Just as clearly, a motorist must be allowed to leave her lane of travel in order to avoid obstructions or other dangers. Nevertheless, such excursions must be made as safely as possible, to wit, after the motorist checks the traffic conditions around her and maneuvers accordingly. However, it is not just deliberate lane excursions that may endanger other drivers or pedestrians. Accidental lane excursions, by definition, are made without the motorist first ascertaining their safety. Such inadvertent maneuvers may cause as much danger or damage as those made deliberately in the face of observed risks. Certainly, a motorist who is accidentally leaving her lane of travel creates a driving hazard at least to herself, if not to others.
Thus, we agree with the Ohio Court of Appeals’ observations about the public policies underlying a legislature‘s adoption of a statute like Section 123(1):
The legislature did not intend for a motorist to be punished when road debris or a parked vehicle makes it necessary to travel outside the lane. Nor, we are quite certain, did the legislature intend this statute to punish motorists for traveling outside their lane to avoid striking a child or animal. We are equally certain the legislature did not intend the statute to give motorists the option of staying within the lane at their choosing. Common sense dictates that the statute is designed to keep travelers, both in vehicles and pedestrians, safe. The logical conclusion is that the legislature intended only special circumstances to be valid reasons to leave a lane, not mere inattentiveness or carelessness. To believe that the statute was intended to allow the motorists the option of when they will or will not abide by the lane requirement is simply not reasonable.
State v. Hodge, 147 Ohio App.3d 550, 771 N.E.2d 331, 338 (Ohio Ct.App.2002) (citing
Therefore, based on the plain language of the statute, and guided by our concern for public safety, we hold that Section 123(1) is violated when a motorist strays outside of her lane of travel when either (1) it is practicable10 for her to remain in her lane of travel or (2) she fails to first ascertain that the maneuver can be made with safety. See
In this regard, we respectfully disagree with the Kansas Supreme Court which, in spite of its analysis quoted supra, went on to construe Kansas’ version of Section 123(1) as “requir[ing] more than an incidental and minimal lane breach” because the text of the statute “only requires compliance with the single lane rule as nearly as practicable, i.e., compliance that is close to that which is feasible.” Marx, 215 P.3d at 612; see also, e.g., State v. Livingston, 206 Ariz. 145, 75 P.3d 1103, 1106 (Ariz.Ct.App.2003) (holding that “as nearly as practicable” language contained in Arizona‘s version of Section 123(1) “demonstrates an express legislative intent to avoid penalizing brief, momentary, and minor deviations outside the marked lines“). We reject this muddying of the waters. The words “incidental,” “minimal,” “brief,” “momentary,” and “minor” present significant definitional challenges in the context of assessing the constitutionality of a traffic stop.12 Accordingly, we hold that “as nearly as practicable” means that a motorist must not leave her lane of travel any more than is made necessary by the circumstance requiring the lane excursion. For instance, if the motorist is driving a large vehicle with a high profile, such as an RV, and the weather includes high velocity wind gusts, minor crossings of lane lines occurring in conjunction with the wind gusts may satisfy the “as nearly as practicable” language of the statute and may not constitute a violation of Section 123(1). See, e.g., United States v. Freeman, 209 F.3d 464, 467-68 (6th Cir.2000) (holding that officer did not have probable cause to stop top-heavy motor home for violating Section 123(1) where motor home crossed fog line for one-third of a second during high winds); United States v. Gregory, 79 F.3d 973, 978 (10th Cir.1996) (holding that officer did not have grounds to stop U-Haul rental truck under Utah‘s version of Section 123(1) because “[t]he road was winding, the terrain mountainous and the weather condition was windy. Under these conditions any vehicle could be subject to an isolated incident of moving into the right shoulder of the roadway, without giving rise to a suspicion of criminal activity.“); cf. United States v. Ozbirn, 189 F.3d 1194, 1198 (10th Cir.1999) (construing Kansas’ version of Section 123(1) and holding that “[officer] had probable cause to stop [defendant] after he saw the motor home drift onto the shoulder twice within a quarter mile under optimal road, weather
We caution that in many cases it will not be possible for an observing officer to discern either the reason for a driver‘s leaving her lane of travel or whether she first ascertained the safety of the maneuver. In those cases, the officer would have to investigate further in order to determine whether the driving maneuver violated Section 123(1). See Hackett, 361 Ill.Dec. 536, 971 N.E.2d at 1066 (holding that an investigatory stop made after officer observed motorist deviating from lane for no apparent reason “allows the officer to inquire further into the reason for the lane deviation, either by inquiry of the driver or verification of the condition of the roadway where the deviation occurred“). In such cases, the officer would not have probable cause to stop the motorist but might have sufficient reasonable suspicion to do so. See id. (holding that officer was justified in making an investigatory traffic stop after observing motorist twice deviate from his own lane of travel to an adjacent lane of travel for no obvious reason).
Our review of the pertinent cases indicates that some courts have concluded that a police officer has probable cause to stop a motorist simply upon observing the motorist cross over a fog line. See, e.g., United States v. Sessoms, No: 2:14-CR-1-FL-1, 2014 WL 5822865, at *7-8 (E.D.N.C. Nov. 10, 2014) (holding that officer had probable cause to stop motorist for violating North Carolina‘s version of Section 123(1) upon witnessing a single fog line crossing); State v. Malone, 56 So.3d 336, 343-44 (La. Ct.App.2010) (stating that a car crossing a fog line violates Louisiana‘s version of Section 123(1), thereby providing “probable cause to believe that a traffic violation for improper lane usage has occurred“). We respectfully reject this approach because it would be tantamount to construing Section 123(1) as creating an offense that is always committed upon a fog line crossing. Such a construction is contrary to the plain text of the statute.
Moreover, the distinction between a stop based on probable cause and a stop based on reasonable suspicion is not simply academic. As set forth above, reasonable suspicion will support only a brief, investigatory stop. See Terry, 392 U.S. at 27-29; see also Bentley, 795 F.3d at 633 (noting the necessity to “distinguish between stops based on reasonable suspicion and those based on probable cause [because] [t]he latter are not subject to the scope and duration restrictions of Terry“); State v. Troxell, 78 S.W.3d 866, 871 (Tenn.2002) (recognizing that investigative stops must be “reasonably related in scope to the circumstances which justified the interference in the first place” and that the stop “must be temporary and last no longer than necessary to effectuate the purpose of the stop” (quoting Terry, 392 U.S. at 20, and Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)) (internal quotation marks omitted)).
Upon our review of the cases cited above and other cases, and taking into account the plain text of Section 123(1) and the overriding purpose of enhancing highway safety, we conclude 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 vio-
We reiterate that an individual does not lose her constitutional rights against unreasonable seizures by driving a car. Nevertheless, an individual‘s constitutional rights against unreasonable seizures must be balanced against the public interest of police officers enforcing traffic statutes designed to ensure the safety of the motoring public, pedestrians, and property. While minor traffic infractions may lead to the commendable discovery of an intoxicated motorist, we are cognizant that there are many distractions in today‘s driving environment that may divert a sober motorist‘s attention and cause her to momentarily and inadvertently leave her lane of travel. See Marx, 215 P.3d at 607 (recognizing that “automobiles, unlike railway locomotives, do not run on fixed rails“). Commentators have cautioned that allowing police officers to stop motorists for de minimis driving anomalies creates a “stop at will” environment at complete odds with the Fourth Amendment. See, e.g., Lewis R. Katz, “Lonesome Road“: Driving Without the Fourth Amendment, 36 Seattle U.L.Rev. 1413, 1413 (Spring, 2013) (asserting that “[o]ur streets and highways have become a police state where officers have virtually unchecked discretion about which cars to stop for the myriad of traffic offenses contained in state statutes and municipal ordinances“); David A. Moran, The New Fourth Amendment Vehicle Doctrine: Stop and Search Any Car at Any Time, 47 Vill. L.Rev. 815, 816 (2002) (referring to a series of United States Supreme Court opinions as establishing a “new, and greatly simplified, Fourth Amendment vehicle doctrine: the police may, in their discretion, stop and search any vehicle at any time“); Elizabeth Ahern Wells, Note, Warrantless Traffic Stops: A Suspension of Constitutional Guarantees in Post September 11th America, 34 U. Tol. L.Rev. 899, 899 (Summer, 2003) (describing the United States Supreme Court‘s interpretation of the reasonable suspicion standard as having “evolved into a veritable green light for police officers, resulting in a complete disregard for personal security“). We emphasize that our decision in this case is not intended to provide law en-
The Defendant‘s Stop
Based upon the contingencies contained within Section 123(1), under the particular facts and circumstances of this case, Trooper Achinger could not know whether the Defendant actually had violated Section 123(1) except upon further investigation. The record contains no proof about the Defendant‘s reasons for leaving her lane of travel. The record also contains no proof about whether the Defendant first ascertained that she could leave her lane of travel with safety. All Trooper Achinger observed was the Defendant crossing over the fog line with the two right wheels of her car and then twice touching it with the right wheels of her car.
As we indicated above, crossing over a lane line with two of a car‘s four wheels is an instance of leaving one‘s lane of travel. However, only by questioning the Defendant would Trooper Achinger have been able to ascertain whether the Defendant had determined that remaining within her lane of travel had become impracticable for some legitimate reason unknown to him and whether she had first ascertained the safety of her maneuver. Accordingly, we hold that the proper basis for analyzing the constitutionality of Trooper Achinger‘s stop of the Defendant is whether he had a reasonable suspicion, supported by specific and articulable facts, that the Defendant had violated Section 123(1) by crossing over the clearly marked fog line with the two right wheels of her car.
Our conclusion is consistent with our analysis in State v. Brotherton, 323 S.W.3d 866 (Tenn.2010). In that case, a state trooper saw a “bright light” shining from the defendant‘s car‘s taillight area. Id. at 868. The trooper began following the defendant and eventually stopped him “to investigate the broken taillight.” Id. During the stop, the trooper deduced that the defendant was driving under the influence and arrested him. Id. After the trial court denied the defendant‘s motion to suppress, the defendant pled guilty to DUI but reserved a certified question of law regarding the legality of his traffic stop. Id. at 869.
This Court was careful to analyze the defendant‘s traffic stop in terms of whether the officer had reasonable suspicion, not probable cause, to believe that the defendant was in violation of
We turn, then, to whether Trooper Achinger‘s seizure of the Defendant was supported by reasonable suspicion. This analysis requires us to consider, from the position of a reasonable officer, the circumstances indicative of whether the driving conditions facing the Defendant allowed her to remain entirely in her lane “as nearly as practicable.” If there were no apparent driving conditions present that rendered it impracticable for the Defendant to stay in her lane, then that fact supports a finding of reasonable suspicion that the Defendant may have violated Section 123(1) by crossing the fog line. For instance, had Trooper Achinger observed nothing more than the Defendant crossing the fog line in order to avoid the body of a deer laying in her lane of travel, and that she caused no safety hazard in doing so (thereby indicating that she had first ascertained the safety of her maneuver), Trooper Achinger would have had no constitutionally defensible reason to suspect that the Defendant had violated Section 123(1).
Even if there was a circumstance that rendered it impracticable for the Defendant to remain in her lane of travel, Trooper Achinger still might have had a constitutional basis for initiating a traffic stop if he observed the Defendant leaving her lane of travel in a manner that was unsafe. For instance, if the Defendant swerved to the left of the body of a deer instead of to the right and thereby caused another vehicle to swerve to avoid a collision, Trooper Achinger would have had at least a reasonable suspicion, if not probable cause, to believe that the Defendant had violated Section 123(1) by failing to ascertain that she could leave her lane of travel safely.
Turning to the proof adduced at the hearing on the Defendant‘s motion to suppress, we note first that Trooper Achinger observed the Defendant driving at approximately 3:00 in the morning, a time at which a driver may be more likely to be fatigued or impaired. Such circumstances increase the likelihood of accidental lane excursions. Second, the Defendant was driving on an interstate highway, a roadway with clearly marked lane lines, designed to be driven at high speeds, and with lanes wide enough to accommodate tractor-trailers traveling side by side, even through the curves. See United States v. Tang, 332 Fed. Appx. 446, 452 (10th Cir. 2009) (finding reasonable suspicion to stop motorist for violating Utah‘s version of Section 123(1) where U-Haul crossed fog line with both back right tires where, “[a]lthough it was dark and there was a mild to moderate wind, the interstate was not winding or narrow and only curved gradually to the left“); cf. Gregory, 79 F.3d at 978 (no reasonable suspicion to stop U-Haul truck for a single fog line crossing where “[t]he road was winding, the terrain mountainous and the weather condition was windy“). Third, the video recording reveals that the weather and the roadway were dry. Fourth, although the video camera did not capture the Defendant actually crossing the fog line, it is clear from the recording that Trooper Achinger did not need to swerve from the same lane of travel in order to avoid some obstruction
The totality of these circumstances established reasonable grounds to suspect that the Defendant left her lane of travel accidentally, not because it was impracticable for her to remain in her lane. As indicated above, if a motorist is engaging in a driving maneuver by accident rather than deliberately, the motorist is not first ascertaining whether the maneuver can be made with safety. In light of very similar circumstances, the United States District Court for Kansas upheld a stop for a suspected violation of Kansas’ version of Section 123(1):
The court finds that Trooper Nicholas possessed reasonable suspicion the defendant Blanchard did not purposely move from her lane of travel onto the shoulder and, thereby, failed to first ascertain that her lane movement could be made safely. There is no evidence that the defendant Blanchard used her turn signal before crossing over the fog line and driving onto the shoulder by a tire‘s width. Instead of slowing down and stopping on the shoulder, the defendant‘s vehicle maintained its speed and returned to a proper lane of the roadway after a matter of seconds. There is no evidence that the defendant Blanchard departed from her lane onto the shoulder in response to an apparent hazard or adverse physical conditions or for some other equally valid or lawful reason. One can reasonably infer from these circumstances that the defendant Blanchard never actually intended to move from her lane of traffic. Thus, Trooper Nicholas had reasonable suspicion to believe that Blanchard moved out of her lane of travel without first ascertaining whether she could do so safely, all in violation of
K.S.A. § 8-1522(a) .
United States v. Jones, 501 F.Supp.2d 1284, 1298-99 (D.Kan.2007) (footnotes omitted).
Accordingly, we hold that the totality of the circumstances surrounding the Defendant‘s traffic stop established a reasonable suspicion, supported by specific and articulable facts, that the Defendant violated Section 123(1) when she crossed the fog line and failed to remain entirely within her lane of travel. Therefore, Trooper Achinger was justified in stopping the Defendant to investigate further the reasons for her leaving her lane of travel. Cf. Marx, 215 P.3d at 612-13, 615 (holding that stop was not supported by reasonable suspicion where officer testified only to seeing motor home cross fog line once, overcorrect, and cross lane dividing two northbound lanes of interstate because state produced no proof from which to infer that “it was practicable to maintain a single lane” or of “traffic or weather conditions, time of day, or any other observation relating to the practicability of the momentary deviation“) (latter quote from Davis, J., concurring).
In sum, although we disagree with the trial court that probable cause supported the Defendant‘s traffic stop, we hold that the trial court properly denied the Defendant‘s motion to suppress. Accordingly, the Defendant is not entitled to relief on
Therefore, we affirm the judgment of the Court of Criminal Appeals.
Conclusion
Trooper Achinger‘s stop of the Defendant did not violate the constitutional rights of the Defendant because it was supported by reasonable suspicion.
Notes
Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway, except as follows:
(1) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement;
(2) When the right half of a roadway is closed to traffic while under construction or repair; (3) Upon a roadway divided into three (3) marked lanes for traffic under the applicable rules thereon; or
(4) Upon a roadway designated and signposted for one-way traffic.
Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply. (a) A vehicle shall be driven, as nearly as practicable, entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
Unif. Vehicle Code § 11-309(a) (2000) (as quoted in State v. Phillips, 2006 WL 3477003, at *8 n.9 (Ohio Ct.App. Dec. 4, 2006)). All fifty states have passed legislation mirroring this provision. See State v. Regis, 208 N.J. 439, 32 A.3d 1109, 1112 n.2 (N.J.2011).
[w]hen a roadway has been divided into clearly marked lanes for traffic, drivers of vehicles shall obey the following regulations: . . . A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety[.]
Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply.
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.