State v. Binette

Tennessee STATE of

Guy BINETTE. Tennessee,

Supreme Court of

at Knoxville.

5,Oct. 2000. TN, Sloan, Chattanooga,

Jerry S. Guy Binette. appellant, Summers, & Attorney General Paul G. Moore, Michael E. Solicitor Reporter; General; Pollack, and Ellen H. Assistant ments that were recorded on the audio General, Attorney Nashville, TN, portion of tape regarding for the the what he con- sidered to be appellee, driving by State of errors made Tennessee. Bi- nette. He commented that Binette had Summers, Jerry TN, H. Chattanooga, “already yellow twice,” crossed the line curiae, for the amicus Wyatt, Summers & observed that just “the vehicle made a P.C. swerve,” Binette, hard and noted that point, one was “running about 60 per miles OPINION hour in a per 45 mile hour zone.” Based upon observations, his Officer Davis decid- BARKER, J., WILLIAM M. delivered ed to stop Binette and subsequently arrest court, opinion the of the in which E. him. ANDERSON, C.J., RILEY and FRANK DROWOTA, III,

F. and ADOLPHO A. After he was indicted for driving under BIRCH, Jr., JJ., joined. intoxicant, the influence of an Binette filed suppress a motion to all gained This is an appeal from the Criminal by following the State stop. the He ar- Court for County, Hamilton which over- gued that there was suspi- no reasonable ruled the defendant’s suppress motion to upon cion based articulable facts for an all evidence obtained the State after the investigative stop. At defendant was stopped by a police officer hearing, Binette testified and denied mak- on driving while under the ing the driving alleged errors by the offi- influence anof intoxicant. The defendant cer. Athough Officer testify Davis did not entered a conditional plea guilty at the hearing, the videotaped recording appeal reserved for dispositive as a ques- was introduced objection. without Basing tion of law the issue of the lawfulness of its decision solely on the visual stop. The Court of Criminal Appeals videotape the court reached affirmed the trial court’s judgment. The following conclusion: defendant thereafter sought, and this [Tjhere lines, was within the granted, Court permission to appeal on the fairly significant weaving about the time following issue: whether suspi- the video started up until the time [Bi- cion, specific based on and articulable turned and lights nette] were acti- facts, existed to authorize a vated, so I do find that there was articu- defendant’s Having vehicle. reviewed the lable suspicion for the this case record in this we hold that the evi- I so will overrule the motion to dence does not support the trial court’s suppress. finding that police officer acted with Pursuant to Tennessee Rule of Criminal reasonable suspicion stopped when he 37(b)(2)(iv), Procedure Binette entered a defendant. Accordingly, judgment plea conditional of guilty and reserved as a reversed, the Court of Appeals Criminal is dispositive question of appeal law for the conviction as entered the trial court issue the lawfulness of stop. vacated, charge and the of driving while plea agreement provided for a sentence of under the influence of an intoxicant is dis- twenty-nine eleven months and days missed. county jail, suspended serving forty- after evening On the of February $360; eight jail; hours a fine of a sus- Guy Binette was in Chattanooga, pension driving privileges of Binette’s Tennessee, when he stopped by Offi- Tennessee; requirement and a that Bi- Gerry cer Davis Chattanooga Police nette attend a DUI school. The court Department. stop, Prior to the Officer pursuant sentenced Binette the agree- Davis followed Binette for several minutes holding ment and issued an order the sen- and videotaped driving. During Binette’s abeyance tence in pending resolution of time, the officer made several state- Binette’s appeal. The Court of Criminal is- Court, presupposes standard ma- the Odom and a reviewed judgment, trial courts grant jority affirmed We sues of “swerve Binette did finding that these review of deference considerable then lane. Binette his weave” within uniquely courts are such issues because permission granted, and this Court sought, and the demeanor to observe positioned following issue: whether appeal on the Moats, State v. of witnesses. See conduct specific on and suspicion based (Tenn.1995). 431, But 906 S.W.2d a stop to authorize facts existed articulable sup- fact at a findings of a court’s when Binette’s vehicle. of solely on evi- hearing are based pression credi- involve issues of that does not dence DISCUSSION videotape evidence as the bility, such I. of Review Standard underlying a more rationale the this (Tenn. Odom, 928 S.W.2d 18 In impli- review is not standard of deferential 1996), the different this Court examined must determine we Consequently, cated. then used appellate of review standards for a trial court’s of review the standard to evaluate a trial Tennessee courts suppress a motion to of fact on law on and conclusions of findings of fact that does on evidence they are based when The observed suppression issues. Court involve issues of applied appellate generally courts that our pre of review: three different standards compen In the context of workers’ evidence, any material the ponderance of cases, this has held Court sation combining a both standard expert medical “where the issues involve any of the evidence and preponderance proof See id. is con material evidence standards. all the medical testimony and split The resolved 22-28. Court ... then by deposition in the record tained by adopting courts among Tennessee its own conclusions may draw this Court suppres of following standard for review of that credibility weight about sion issues: Lawrence City Krick v. testimony.” of the wit- Questions credibility of of 709, 712 burg, 945 S.W.2d nesses, of the evi- weight and value allowing appellate an The rationale dence, in the and resolution of conflicts de novo without review such evidence to the are matters entrusted evidence clear: correctness is of presumption as the trier of fact. judge as position in the same reviewing court is trial court is enti- party prevailing capable just and is as the trial court view of strongest legitimate tled id. Similar the evidence. See reviewing suppression at the the evidence adduced fact on a findings of a trial court’s ly, when all reasonable hearing as well as solely on are based suppress motion drawn may inferences that be legitimate issues does not involve evidence that long as the that evidence. So from ca just are appellate courts credibility, supports weight of the evidence greater and draw evidence to review the findings, findings pable those words, a trial Accordingly, In other upheld. shall be conclusions. their own suppression findings of fact findings of trial court’s that when a hold the evi- hearing upheld will be unless hearing are based fact at otherwise. preponderates dence involve issues that does not Id. at 23. reviewing court must examine credibility, a presumption novo the record de without certainly relevant

While Odom of correctness.1 question now before determining proper ly on the issue reserve decision holding facts and issue is limited to the 1. Our videotaped appellate review of express- hereby standard appeal. We presented in this Application II. of Standard of Review facts, by specific and articulable that Bi- committed, nette had or was about to com- We now turn our attention to the mit, a criminal offense. precise issue before the Court: whether specific and articulable facts existed to au particu Reasonable is a thorize of Binette’s vehicle. The objective larized and basis for suspecting Fourth Amendment to the United States subject of a stop of criminal activity, Constitution provides right “[t]he States, see Ornelas United people to be ... against secure unrea 116 S.Ct. 134 L.Ed.2d 911 seizures, sonable searches and shall not be (1996), and it is determined considering violated, issue, and no warrants shall but totality of the circumstances surround I, upon probable cause.” Article section 7 White, ing stop, see Alabama v. 496 of the similarly Tennessee Constitution 325, 330, 2412, U.S. 110 S.Ct. 110 L.Ed.2d prohibits unreasonable searches and sei (1990). 301 In this argues State zures and is identical in pur intent and following specific that the and articulable pose with the Fourth Amendment. See facts rise give to reasonable that State, 6, Sneed v. 221 Tenn. 423 S.W.2d Binette was a vehicle while under (1968). 857, “Consequently, 860 under the influence of an intoxicant: constitutions, both the federal and state a (1) the defendant traveling was on a warrantless search presumed or seizure is in County, road Hamilton Tennessee at unreasonable, and evidence discovered as 13, 1997; midnight about on February subject a result thereof is to (2) it raining, was not and the weather unless the State demonstrates that (3) inclement; was not there was no search pursuant or seizure was conducted np any construction traffic of and conse- narrowly one of the defined exceptions (4) quence; videotape [the shows in that] requirement.” warrant v. State time, a two minute period of the defen- (Tenn.1997). Yeargan, 626, 958 S.W.2d 629 appears dant’s car to touch the center (5) line at least ... four times [ ] [the exception One to the warrant re videotape also shows the defen- that] quirement exists when a police officer dant’s car made a sudden swerve within makes an investigatory stop upon based his own lane. suspicion, supported by specific facts, State, and articulable that a criminal of According to the the first three facts, fense has been or is about to be commit undisputed, which are eliminate oth- Ohio, 1, 20-21, Terry ted. See er explanations alternative for the erratic 1868, (1968); 88 S.Ct. 20 L.Ed.2d 889 driving it attributes to Binette. The State (Tenn. Bridges, 963 S.W.2d argues 492 “[w]hen car weaves back and 1997). Upon turning on the blue lights of forth several times in its own lane late at vehicle, police officer clearly night has initi in clear weather with little traffic ated a stop subject construction, and has seized the and no police trained offi- stop within the meaning may of the Fourth cer infer from those facts Amendment of the Federal Constitution driver be may driving while intoxicated.” I, However, and Article section 7 of the Tennessee in each of the cases cited Pulley, Constitution. See State v. 863 State which other courts have found Thus, S.W.2d probable order cause to a driver who was traffic, this case to be constitution single within a lane of valid, ally at time that police Officer Davis officer observed the defendant lights, turned on his vehicle’s blue he in pronounced must weave manner to the out- supported have had reasonable suspicion, side and inside boundaries of the lane.2 Kvam, pre- squarely trial record until that issue is 2. See State v. 336 N.W.2d (Minn. 1983) (finding probable sented. cause where Moreover, videotape, following. have viewed the Binette was We was we have listened to the officer’s recorded along a road —a more traveling winding narration of his observations. Equally difficult course which travel capable reviewing as the trial court of Contrary line. straight what Officer evidence, we find that the officer’s state observed, Davis stated that he we find that ments, investiga made at the time of the any Binette did not violate rules of the tion, clearly are contradicted the visual during period road which the video thus, portion tape, give we them driving. camera recorded his The video weight little in our de novo review of the recording does not reflect evidence. We simply any do not find evi that the at an traveling vehicle exces- pronounced dence of weaving or hard Admittedly, speed. sive Binette occasion- Binette, swerving by with disagree ally drifted from the center of the lane. the State’s contention that the legislature Our has stated that “[whenev- shows that Binette touched the center line any roadway er has been divided into two major least four times. We note that a (2) clearly or more marked lanes for traf- ity of the Appeals, Court Criminal after fic, ... [a] vehicle shall be driven as near- viewing the videotape, found two in ly as practicable entirely single within a stances in which Binette’s vehicle touched ” § lane.... Ann. Tenn.Code 55-8- the center line. The majority and dissent 123(1)(1998) added). (emphasis fail- “[I]f ing opinions from that agreed court perfect ure to follow a vector down the “weaving” entirely was within his lane highway ... sufficient [was] ] to reasonf of travel and exaggerated. was not We suspect person driving while impaired, agree with the Appeals Court of Criminal public substantial would be that any movement Binette’s vehicle made subject day each to an invasion of their within his own lane of travel clearly was privacy.” Lyons, United States v. 7 F.3d exaggerated. number times (10th Cir.1993). 973, Likewise, 976 in his that a vehicle touches the center line or below, dissenting opinion in the court drifts within in a dispositive lane is not Judge Jerry emphasized L. Smith the dan- Rather, the issue before this Court. as we ger finding suspicion reasonable under noted, previously have a court must con these facts: sider totality of the circumstances in determining whether suspicion reasonable [finding In essence ... suspi- reasonable present at the stop time a was initi a “stop cion] creates at will” standard ated. police for since it is the rare motorist

Prior to the initiation indeed who can travel for stop, several miles occasionally shows Binette without un- proceeding varying speed cor- rectly through a necessarily, moving number of laterally intersections from time stop lights and maintaining appropri- lane, to time own motorist[’]s ate distances shoulder[,] behind the vehicles that he nearing the center line or or police "pull right officer saw defendant’s car quarters out of left and mile); for about three of a parking 736, lot ... ‘kind of fast’ and make Tompkins, State v. 507 N.W.2d ‘very right Highway wide’ turn onto 3 south- (Iowa Ct.App.1993) (finding probable 737 car,

bound ... saw another southbound police where cause officer "observed defen- Rabbit, pull over onto the shoulder to avoid weave dant’s car from the center line to the being pull hit and saw defendant’s car com- times”); right boundary side several State v. lane, pletely into the northbound where it Field, 657, 1280, Kan. P.2d 252 847 1281-82 getting remained for about a block before (1993) (finding probable cause where defen- appropriate back into the southbound lane dant’s vehicle "was from the middle ... observed [and vehicle] People defendant’s ‘weav- lane, of its lane to the outside of the to the Perez, ”); ing within its lane' see also v. inside of the lane back to middle” 8, 776, Cal.App.3d Supp. Cal.Rptr. 175 221 within one block and weave three additional (1985) (finding probable po- cause where blocks). over times three more "pronounced weaving” lice officer saw

exhibiting imperfection some small his Officer Davis driving. or her suspicion had reasonable Binette the influence of an driving while under Binette, State No. 03C01-9802-CR- intoxicant. While Binette did move later- at 7 n. 2 (Tenn.Crim.App. June ally operat- at times within his lane while 1999) (filed Knoxville) (Smith, J., dis vehicle, ing find that his his movement senting). pronounced, was not and therefore did not Appeals The Court of Criminal has re give suspicion rise to reasonable that he cently refused to find that an officer had an was under the influence of intoxicant. driver Accordingly, judgments of the trial whose it found not to be erratic or and the Court of Criminal any way ratio improper. Explaining its denying suppress Binette’s motion to are nale, stated, the court willing “We are not reversed, the conviction as entered ignore guarantees of the Fourth vacated, charge trial court is and the indirectly Amendment and that ‘[t]he hold driving while under the influence of an word “automobile” is ... a talisman in intoxicant is dismissed. presence whose the Fourth Amendment ” away disappears.’ fades State v. appeal Costs of this are assessed to the Smith, (Tenn.Crim.App. 21 S.W.3d 251 of Tennessee. 1999) (citing Coolidge New Hampshire, 443, 461-62, 91 S.Ct. HOLDER, J., a dissenting opinion. filed (1971)). agree. L.Ed.2d 564 We HOLDER, J., dissenting. JANICE M. conjunction findings In with our based videotape, on the Binette testified that he I no need respectfully dissent. There is alleged by did not make the errors to the adopt to new standard review Although give strong the officer. we def- presented in this case. videotaped erence to the of the trial court conclusions I would hold that an application weighs it and when considers witness’s in traditionally applied standard of review live, testimony, explicit in-court there is no in Tennessee establishes that the officer in concerning indication the record wheth- this case had reasonable to judge the trial to er found Binette be Binette. Indeed, absolutely credible. no reference videotaped evi- majority The reviews testimony; trial was made to Binette’s pre- dence in this case de novo with no judge entirely percep- relied on her own sumption of correctness afforded to depicted tions of what was on the video- is trial court. The standard of review Thus, tape. even were we to assume that Odom, in contrary to our decision State v. credible, v. Binette was not but see Cleek Odom, In we 928 S.W.2d 18 Stores, Inc., Wal-Mart 19 775 S.W.3d findings held that a trial court’s of fact (Tenn.2000) (assuming credibility of a suppression hearing upheld will be unless in part witness based on the absence of the evidence otherwise. preponderates record), judge’s findings trial on the rejects majority id. at 23. The See nevertheless find that the evidence does on its conclusion that the standard based support findings, and position” trial was “in no than court better the trial determi- we thus reverse court’s to review the evidence appellate court nation that the officer had reasonable sus- credibility. because there are no issues picion to Binette. majority’s position, to the

Contrary CONCLUSION in this case. credibility there are issues op Questions credibility In on review of the arise whenever summary, based our See, e.g., hearing, posing presented. record of the evidence is entire (Mo. 17 Lloyd, Thomas v. S.W.3d 187 support we hold that the evidence does not 221 (“A credibility of a witness’s novo the reviewing court’s defer er de Ct.App.2000) testimony on that testimony because trial resolution of credibil ence to a so, do The court declined to videotape. ity limited the issue of witness is not the trial court is citing precedent that credibility, also to conclusions of the but court.”). the witness position to observe the best The trial had before it trial that and to determine witness’s competing descriptions three of the events: noted that there are rea- The court also subjective interpretation the officer’s deferring sons, credibility, for unrelated to video stated in the audio findings: factual subjective tape, explana the defendant’s tion, judge’s major role is the deter- videotape’s and the record of the The trial fact, experience with if the trial mination of event. Even we assume that Du- expertise. solely fulfilling that role comes court based its decision on judge’s the trial efforts plication did videotaped the trial court so very likely appeals the court of would determining after only negligibly to the accura- contribute was a more credible version of facts at a cy huge of fact determination cost than the defen explanation offered judicial In resources. addi- diversion dant. Trial courts are not otherwise enti tion, appeal to a have parties case on disregard evidence. tled admissible Cf. already been forced to concentrate their 2 Hornsby, 895 n. S.W.2d persuading energies resources (Tenn.1993) (allowing appellate courts to account of the judge the trial their disregard testimony of facts that are “in one; requiring the correct them facts is herently impossible absolutely at vari judges more at the persuade three universally ance with well-established and requiring too much. appellate level is recognized physical laws” because it is evidence.”) (quoting “not credible Nelms City Id. at 29 Anderson v. (quoting Co., Tennessee Farmers Mut. Ins. 564, 574-75, 105 City, Bessemer 481, 483 (Tenn.Ct.App.1978)). (1985) (internal S.W.2d 1504, L.Ed.2d 518 S.Ct. omitted)). quotations majority upon “deposition relies judicial rule” enunciated in It that three different compensation telling workers’ “deposition cases. The rationale for the of the facts of this case interpretations deposition independent rule” is that reaches three reviews were elicited appellate videotape court in the same in of the at each level of review. form now presented majority’s opinion which it was to the trial court. The becomes interpretation. the trial But Accordingly, occupies court no “correct” cf. Anderson, in position appellate better than the court 470 U .S. at S.Ct. reviewing (stating permissible that evidence. there are two interpreting “Where evidence, factfinder’s majority The has determined that the views of the vid- eotape clearly in a similar to choice between them cannot be er- posture comes —it roneous.”). any pre- By failing give pre- to that to this Court form identical court, to trial majority sumption trial The of correctness sented to the court. in majority essentially not endorses a “last therefore concludes that we are bound right” line is rule. interpretation the trial court’s videotape because the trial court was truly If trial court is “no better a required to determine to evalu- appellate than the position” evidence, exist, however, rationale for elimi- ate then the Strong policy reasons of of correctness findings nating presumption trial factual presuming a true correct, findings is that the credibility is not an the trial court’s even where Archibald, from likely gleaned more to be issue. In Mitchell v. 971 facts are (at of the evidence interpretations the Court three (Tenn.Ct.App.1998), S.W.2d 25 level), and even- appellate a to consid- the intermediate by party of was asked tually interpretations five of the evidence The remainder of the evidence includes (at level), Supreme Court than from the officer’s that Binette had “al- assertion the trial single interpretation. ready yellow This crossed the line twice” and ignores running rationale a fact that Mitchell and that Binette’s “vehicle is about 60 recognize: judges per per Anderson are the miles hour in a 45 mile hour zone.” I expert findings fact-finders. am convinced that The trial court did not make of must, position trial courts are in a better than fact as to these statements. We fact, however, appellate findings courts to record to make consider the entire de- irrespective of the form of the evidence. termine whether the officer had reasonable suspicion to Binette. The officers’s Giving presumption correctness statements were admissible evidence.2 the trial court in this I would hold statements, therefore, may The be consid- supports finding that the evidence that in determining ered whether the officer in this case based upon rea- had reasonable suspicion. Odom, suspicion. appellate sonable Under give presumption courts of correctness to specific finding The trial court’s of fact the trial findings long court’s factual as and the remainder of the includ- preponderate against the record does not ing rejection implicit findings. those See Odom 928 S.W.2d facts, Binette’s version of the convinces me Application 23. of the law facts is had reasonable officer Yeargan, de novo. 958 S.W.2d impaired. that Binette was while I 626, 629 would therefore affirm. finding factual made on the record in this case was there was Odom,

“fairly significant weaving.” Under presume

I be correct. This

presumption long stands so as the evi- preponderate

dence the record does not Wade NANCE it. against agree majority I cannot with the opinion in that there is no “evidence of pronounced INDUSTRIES, STATE INC. swerving by or hard Binette.” component The officer states the audio just that “the vehicle ITT Insurance Hartford Co. made hard swerve.”1 The officer was Tennessee, Supreme Court good position judge severity Special Compensation Workers’ swerve, barely caught which was on cam- Panel, Further, era. Binette’s vehicle does weave at Nashville. side to within his lane travel

from side video, repeti- throughout the albeit slow Dec. 2000. Thus, tion. I would hold that the record preponderate against does not the trial “fairly significant weav-

ing.” stipulated admissibility agree majority's assump- parties 2.

1. I cannot with the Both "basted] tion that the trial court its decision entirety. in its The officer's videotape.” solely on the visual hearsay may thus be considered as statements specifically The trial order references were acti- Smith, 24 evidence. See State v. substantive point lights "the at which blue S.W.3d 274 vated.” That event can be determined from the officer's statement was recorded videotape. on the

Case Details

Case Name: State v. Binette

Court Name: Tennessee Supreme Court

Date Published: Oct 5, 2000

Citation: 33 S.W.3d 215

Docket Number: E1998-00236-SC-R11-CD

Court Abbreviation: Tenn.