By Daniel Horwitz:
Tennessee drivers beware: stray outside your lane – even an inch, and even for just a moment – and you’re subject to being seized and arrested by law enforcement. Also, you’ve just committed a crime that can land you in jail for up to a month.
In a pair of companion cases handed down by the Tennessee Supreme Court on Thursday afternoon, the Court observes that “[o]ur legislature has chosen to criminalize the common driving infraction” of crossing lane lines. Moreover, the Court explains, the fact that “drivers in Tennessee [] cross lane lines ‘all the time’” makes no difference. No matter how minor the offense, if you’re suspected of having committed any driving infraction of any kind anywhere in the state, then neither the Fourth Amendment nor the Tennessee Constitution will protect you.
These holdings – surprising as they may seem – actually bring Tennessee law in line with the overwhelming majority of jurisdictions that have analyzed the issue over the past twenty years. In 1996, the United States Supreme Court handed down a controversial – though unanimous – Fourth Amendment decision in Whren v. United States, 517 U.S. 806, 819 (1996). Authored by the late Supreme Court Justice Antonin Scalia, Whren involved a police seizure for a minor traffic offense that had every appearance of being pretextual. Although there was strong reason to believe that the real reason why the driver had been stopped was because he was suspected of carrying drugs, the Supreme Court held without equivocation that an officer’s subjective reasons for pulling someone over do not matter. Simply stated, if police officers “ha[ve] probable cause to believe that [a driver has] violated the traffic code,” then that fact alone “render[s] the stop reasonable under the Fourth Amendment.”
The Tennessee Supreme Court’s decisions in State v. Smith and State v. Davis represent straightforward extensions of this holding, although their potential for abuse is frightening. Both cases involved drivers who were pulled over for momentarily crossing over lane lines. On December 6, 2012, after being followed by a trooper without incident for approximately two-and-a-half miles, Defendant Linzey Smith was pulled over for “cross[ing] the fog line ‘by less than six inches’” as she negotiated a winding, sloping portion of a roadway. Similarly, on October 23, 2009, Defendant William Davis, Jr. was pulled over after his car’s two left wheels briefly drifted over the double yellow line splitting a two-lane road. After being pulled over, both drivers exhibited signs of intoxication, and each was ultimately arrested for DUI.
The question presented in both cases was whether law enforcement had the requisite level of suspicion to pull the drivers over in the first place. Both the Fourth Amendment and Article I, Section 7 of the Tennessee Constitution protect individuals from unreasonable seizures. There is also no doubt – at least in theory – that “an individual does not lose her constitutional rights against unreasonable seizures by driving a car.”[1] Further, longstanding caselaw establishes that “[a] police officer seizes a motorist when he turns on his blue lights in order to pull the motorist over.”[2] As a result, every traffic stop implicates an individual’s rights under the Fourth Amendment and the Tennessee Constitution, and all traffic stops must be justified by a minimum level of suspicion.
Generally speaking, two separate types of seizures are permitted under the Constitution. If law enforcement has probable cause to believe that an individual has committed a crime, then an officer may make a full-scale custodial arrest. Alternatively, if law enforcement has reasonable suspicion to believe that a criminal offense has been or is about to be committed, then an officer may initiate a brief investigatory stop to investigate the matter further.[3]
Notably, “[t]he level of reasonable suspicion required to support an investigatory stop is lower than that required for probable cause.”[4] Although non-technical and imprecise, federal judges estimate probable cause and reasonable suspicion to reflect certainty levels of roughly 45% and 31%, respectively.[5] However, both types of seizures must be justified by specific, articulable facts.
Tennessee law provides that crossing over a lane line even momentarily is a Class C misdemeanor that is punishable by up to 30 days in jail and a $50.00 fine.[6] Consequently, because the troopers in both Smith and Davis had at least reasonable suspicion to believe that the drivers had strayed from their lanes, the Tennessee Supreme Court held that in each instance, the traffic stops were constitutionally permissible. The Court also reiterated, however, that “slight weaving within one’s lane ordinarily will not support a stop under any standard.”[7]
In this regard, the Court’s holdings in Smith and Davis are unremarkable. Broadly considered, they simply reflect the U.S. Supreme Court’s now routine indication that: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”[8] What is concerning, however, is their profound potential for abuse.
In affirming the legality of the stops at issue, the Tennessee Supreme Court candidly acknowledged the reality that nearly all drivers constantly deviate from their lanes. “We are confident that drivers in Tennessee [] cross lane lines ‘all the time,’” Justice Bivins’ unanimous opinion declares. Given this state of affairs, however, it is now a fact of life that virtually any driver in Tennessee can be stopped and jailed anywhere and at any time simply on an officer’s whim for no reason other than that it is impossible to drive perfectly within one’s lane at all times.[9] Additionally, although the Court went to great lengths to caution that its holdings were “not intended to provide law enforcement officers with ‘carte blanche’ to seize motorists every time they see a vehicle cross a [lane] line,” as a matter of practical reality, they do just that.
Any number of commentators have expressed serious reservations about this development in constitutional jurisprudence. Perhaps most troublingly, giving police nearly unchecked authority to seize any driver, anywhere, at any time is eerily reminiscent of the “general warrants” that were abused by the British during the pre-revolutionary period—abuses which gave rise to the very existence of the Fourth Amendment itself.[10] Moreover, Justice Bivins’ observation that “an officer has discretion as to when to stop drivers” – and his additional efforts to emphasize that “[w]e do not mean to require or imply that a stop should be made in all such instances” – should provide Tennesseans little comfort. If past is prologue, affording all law enforcement officers virtually unfettered discretion to stop, search and arrest any Tennessee driver anywhere and at any time is all but guaranteed to lead to profound abuse of authority and disproportionate enforcement against marginalized groups. In particular, poor minorities will continue to bear the brunt of minor traffic stops—often for purely pretextual reasons—while whiter, wealthier drivers remain unmolested. For obvious reasons, to those unlucky few who do not receive the benefit of an officer’s benevolent discretion not to pull them over every time they cross over a lane line, the Tennessee Supreme Court’s efforts to mollify the vast scope of its holdings will be of vanishingly small consolation.
Click to read the Tennessee Supreme Court’s unanimous opinions in State v. Smith and State v. Davis.
Questions about this article? Email Daniel Horwitz at [email protected].
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[1] See Delaware v. Prouse, 440 U.S. 648, 662-63 (1979).
[2] See State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).
[3] State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968)).
[4] State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008).
[5] See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 Vand. L. Rev. 1293, 1325-28 (1982).
[6] See generally Tenn. Code Ann. § 55-8-103 (2008) (“It 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.”); Tenn. Code Ann. § 55-8-123(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;”); Tenn. Code Ann. § 40-35-111(e) (“The authorized terms of imprisonment and fines for misdemeanors are: . . . (3) Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both, unless otherwise provided by statute.”).
[7] In this regard, the Court reaffirmed its prior holding in State v. Binette, 33 S.W.3d 215, 219-20 (Tenn. 2000).
[8] Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549 (2001).
[9] Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 TEMP. L. REv. 221, 252-73 (1989).
[10] See id. See also Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev. 1413, 1413 (Spring, 2013) (“[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) (“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) (stating that traffic stops have “evolved into a veritable green light for police officers, resulting in a complete disregard for personal security”).