IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE June 28, 1999 Cecil Crowson, Jr. APRIL 1999 SESSION Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) NO. 03C01-9802-CR-00075 Appellee, ) ) HAMILTON COUNTY VS. ) ) HON. REBECCA J. STERN, GUY BINETTE, ) JUDGE ) Appe llant. ) (Certified Question of Law)

DISSENTING OPINION I must dissent from the holding of the Court that the minor swerving of the appe llant’s vehicle within his own lane of traffic provides a sufficient bas is for a police stop of that ve hicle. It is tr ue tha t this Cour t has in the past upheld vehicle stops by police where erratic d riving oc curs in the drive r’s lane o f traffic; ho weve r in all these cases erratic “in lane” driving was extreme or accompanied by additional circumstances warrantin g police inv estigation . See, e.g., State v. Stuart Allen Jenkins, C.C.A. No. 01C01-9712-CR-00590, 1998 Tenn. Crim. App. LEXIS 1304, Putnam County (Te nn. Crim. Ap p. filed Decem ber 21, 1998 , at Nashville) (Officer had information from motorist and dispatcher that defendant was a possible D.U.I., couple d with personal observation of excessive weaving in defendan t’s own lane); State v. Geo rge W esley H arvill, Jr., C.C.A. No. 01C01-9607-CC-00300, 1997 Tenn. Crim. App. LEXIS 1067, Sequatchie County (Tenn. Crim. App. filed october 24, 1997, at Nashville) (defend ant made overly wide turn into oncoming traffic causing other motorist to respond by blowing horn, coupled with “riding” of center lane and excessive weaving within defendant’s own lane); State v. Ra ndall L . McF arlin, C.C.A.

No. 01C01-9 406-PB -00202 , 1995 T enn. C rim. App . LEXIS 476, Da vidson C ounty (Tenn. Crim. App. filed June 13, 1995, at Na shville) (In addition to excess ive weaving in defendant’s own lane of traffic, defendant crossed the center and at time ran into the gravel on the shoulders of the road. Defen dant also ran o ver curb in attemp ting to exec ute a turn .)

In the case sub judice the majority admits, and I agree, that the videotape revea ls that while the appellant did swerve somewhat in his own lane, the weaving was not exaggerated. Further, it does not appear that the appellant ever crossed the center lane.

Thus, while the appellant’s driving is not perfect, it is not so erratic that standing alone it furnishes a sufficient basis for a police stop.1

Recently our State Supr eme Cour t held th at even the m ost m inor traf fic offense may serve as a pretext to stop motorists who police suspect of more serious criminal activity, but for which evidence of the more serious crime is lac king. See, State v. Vineyard, 958 S.W.2d 730 (Tenn. 1997). If the majority is correct, minor flaws in driving even though they do not rise to the level of an offense may, when observed by police, serve as the basis for an investigatory stop. Th us, it appears that only perfect driving will assure travel on our roadways without the possibility of police detention. How ever, common sense tells us that no driver is a perfec t driver; we all make innocen t driving error s that, altho ugh no t traffic offenses, may not

The majority notes and I again agree that, had the arresting officer testified at the suppression hearing, as he stated on the videotape, that the appellant was speeding and the trial court had found the officer credible, a sufficient basis to stop the appellant would have been established. However, the officer did not testify as to the appellant’s speed, and we are left with the appellant’s testimony that he was not speed ing as the only evidenc e on this p oint. subject us to a police stop.2 At a minimum when innocent driving errors are the sole basis for the police stop I would require such errors to be exaggerated or excessive before finding that a reasonable suspicion of criminal activity exists which warrants a stop of the vehicle. In this case both the majority and myself agree that the appellant’s flawed driving does not reach such an exaggerated or excessive level. For this reason I dissent and would hold that the stop of the appellant’s vehic le was cons titutiona lly impe rmiss ible under the circumstances presented in this record. (See F.N.1). Therefore all evidence resulting from the stop should, in my opinion, be suppressed.

______________________________ JERRY L. SMITH, JUDGE

In essence the m ajority opinion creates a “stop at will” standard for police since it is the rare motorist indeed who can travel for several miles without occasionally varying speed unnecessarily, moving laterally from time to time in the motorists own lane, nearing the center line or shoulder or exhibiting some small imperfection in his or her driving.