State of Tennessee v. Teri L. Hopson ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JANUARY 1997 SESSION
FILED
July 8, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9601-CC-00007
Appellee, * WASHINGTON COUNTY
VS. * Honorable Arden L. Hill, Judge
TERI L. HOPSON, * (DUI Second Offense)
Appellant. *
For Appellant: For Appellee:
James T. Bowman Charles W. Burson
Attorney at Law Attorney General & Reporter
128 East Market Street
Johnson City, TN 37604 Glenn Erikson
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Joe Crumley
Assistant District Attorney General
P.O. Box 38
Jonesborough, TN 37659
OPINION FILED: _____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Teri L. Hopson,1 was convicted after a bench trial of
DUI second offense. The trial court sentenced her to eleven months, twenty-nine
days; the defendant is to serve forty-five days in jail at 100 percent with the
possibility for work release. Her driver's license was revoked for two years. Proof
on a defense motion to suppress evidence was presented during the course of the
bench trial; a ruling that the arrest was lawful was made at the conclusion of the trial.
The sole issue on appeal is whether the defendant was lawfully
arrested for a misdemeanor offense, where the arresting officer did not witness the
commission of the offense. Because we believe the arrest was proper, the
judgment of the trial court is affirmed.
On September 1, 1994, Officer Larry Robbins of the Johnson City
Police Department was working off duty as a security guard at a Krystal Restaurant
when he observed the defendant drive her vehicle into the parking lot. The officer
described the defendant's driving as follows:
Miss Hopson was turning off of Market Street onto ...
Franklin. She was in the left hand lane, there's two turn
lanes. Miss Hopson's vehicle cut across from the left
hand lane into the right hand lane in front of another
vehicle and that's the one that blew the horn at her. And
then she turned into the [K]rystal's parking lot. As she
turned in she [ran] over the curb ....
Officer Robbins notified the dispatcher to direct an on-duty officer to
investigate a possible drunk driver. Meanwhile, the defendant had made a call on a
pay telephone and began to walk across the parking lot. Officer Robbins, who was
1
W hile some pleadings refer to the defenda nt as "Terry L. Hopso n," it is the policy of this court
to refe r to the defe nda nt as her n am e ap pea rs on the indictm ent.
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in uniform, then asked her to wait for the on-duty officer. The officer acknowledged
that the defendant, due to her impairment, was not free to leave in her vehicle.
Officer Robbins, who had been trained in DUI enforcement and the use of field
sobriety tests, waited at the scene until Officer Lori Cox was able to administer the
tests. He witnessed the defendant's poor performance.
On cross-examination, Officer Robbins testified that he had not
arrested the defendant and had not physically restrained her in any fashion. He
stated that the defendant, after concluding her telephone call, walked towards the
restaurant rather than towards her car; thus, he concluded that the defendant did
not intend to drive away at that moment. On redirect, however, Officer Robbins
reiterated that he would not have allowed the defendant to leave in her condition.
Officer Lori Cox testified that upon her arrival at the scene, Officer
Robbins informed her that he had seen the defendant drive in a reckless manner.
Officer Cox, who acknowledged that she never saw the defendant drive her car,
smelled alcohol on her breath. The defendant admitted that she had been drinking
and informed Officer Cox that she had stopped to use a phone. When the
defendant performed poorly on the field tests, Officer Cox took her to the jail. While
there, the defendant failed additional field tests.
The trial court ruled that the arrest had been lawful and found the
defendant guilty of DUI second offense:
I don't think that Officer Cox saw enough to arrest the
defendant, because she was not in control of the
automobile, and while she was on a public parking place
that met the criteria of one of the elements, and that in
my opinion she was under the influence of an intoxicant
because of her failure to pass the sobriety tests. But she
did not commit driving under the influence of an
intoxicant in the presence of Miss Cox. Now, in my
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opinion she did do actions before Officer Robbins, and
then he detained her, and then Officer Cox investigated
and determined as to exact what--what she should be
charged with. And here we have an officer in uniform,
whether he's a private citizen or an officer that's detained
her and turned her over to another officer is almost
immaterial. I don't think there's much difference in a
private citizen and an officer that's off duty except in the
eyes of the arrestee. All right. I guess I have made my
decision. I'm of the opinion that Officer Robbins
detained, which in my opinion was a type of arrest. ...
Officer Cox just transported her to the jail. But it was
Officer Robbins['] case that he saw it and detained her.
And I'm of the opinion that that's enough.
The defendant contends that her arrest violated Tenn. Code Ann. §
40-7-103(a)(1), which provides that "[a]n officer may, without a warrant, arrest a
person [f]or a public offense committed ... in his presence." The defendant argues
that because she did not commit the offense in the presence of Officer Cox, the
officer had no authority to arrest her and did not have a reasonable factual basis for
detaining her. We disagree.
In some older cases, our courts have strictly and literally applied the
statutory limitation on warrantless arrests. In St. John v. State, 491 S.W.2d 629(Tenn. Crim. App. 1972), for example, an off-duty police officer in Hernando,
Mississippi, observed a vehicle driving in a reckless fashion towards Memphis,
Tennessee. Id. at 630. The Mississippi officer notified Memphis authorities, who
subsequently arrested the defendant. Id. The arresting officer testified "that he did
not observe any unlawful act in his presence [and] ... [t]hat the basis for the arrest
was the information he had received from the Mississippi officer." Id. at 631. Our
court found that the arrest was illegal. Id. See also Williams v. State, 506 S.W.2d
193 (Tenn. Crim. App. 1973).
In more recent cases, however, courts have held that in certain limited
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circumstances an officer may make an arrest for a misdemeanor even though it is
not committed in his presence. See State v. Bryant, 678 S.W.2d 480 (Tenn. Crim.
App. 1984). In Bryant, a police officer observed a car traveling 110 miles per hour.
Id. at 482. After unsuccessfully attempting to stop the car, the officer asked for
assistance. Id. Moments later, a second officer, who had heard the dispatch,
detained a car that matched the description given. The first officer then arrived at
the scene and made the arrest. Id. The second officer "observed no unlawful
action ... [and] the stop was based entirely on [the first officer's] transmission." Id.
Our court ruled as follows:
We note initially that this limitation on warrantless
arrests for misdemeanors is not constitutionally required.
Further, in states that retain the rule, it is frequently held
that in light of the increased speed with which offenders
may flee from a witnessing officer and modern
communications techniques available to the police, an
offense may be said to have been committed in the
presence of the arresting officer if he is in communication
with and is assisting the witnessing officer.
Id. at 483. In determining that the initial detention was lawful, this court ruled that
the prohibition against arrests for misdemeanors not committed in the officer's
presence could not be read to deprive the witnessing officer of the "assistance of a
fellow officer when that assistance is requested in a reliable manner." Id.
In State v. Maxie Lewis Hunter, No. 89-101-III (Tenn. Crim. App., at
Nashville, Oct. 13, 1989), an officer observed an intoxicated driver stop at a gas
station. Id., slip op. at 2. Because the witnessing officer did not have "jurisdictional
authority," he called a second officer who arrived about five minutes later. Id., slip
op. at 2-3. The arrest was made in the presence of the witnessing officer. This
court, noting that the purpose of the statute is to "prevent groundless misdemeanor
arrests of citizens based on hearsay or speculation," upheld the arrest. Id., slip op.
at 4. "[A]ny harm that might occur from a warrantless [arrest] is cured when a police
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officer actually witnesses the offense and then communicates what he has
observed, on the scene and after a very short span of time, to an officer authorized
to make the arrest in the particular geographical jurisdiction." Id., slip op. at 4-5.
We cannot distinguish the ruling in Hunter from the facts in this case.
The defendant also contends that Officer Cox did not have a sufficient
factual basis for detaining her. She bases this argument on our ruling in State v.
James Chester Cobb, Sr., No. 01C01-9011-CC-00308 (Tenn. Crim. App., at
Nashville, May 7, 1991). In Cobb, this court held the police officer did not have a
sufficient factual basis for conducting an investigatory stop where the only
information the officer had was based on a police dispatch which was based on an
anonymous informant. Id., slip op. at 1-2. Because there was no "indication ...
whether the informant was 'credible' or whether the information given was reliable,"
our court found the stop unlawful. Id. Here, however, the informant was a police
officer whose identity and credibility were known by the arresting officer. See State
v. Seaton, 914 S.W.2d 129, 131 (Tenn. Crim. App. 1995). In our view, the arrest
was based upon probable cause from a reliable source. While at the scene, the
arresting officer was able to verify much of the information provided.
Accordingly, the judgment is affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
_______________________________
William M. Barker, Judge
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_________________________________
Curwood Witt, Judge
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