State v. Doyal ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
September 10, 1998
APRIL 1998 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellant, ) C.C.A. No. 03C01-9712-CR-00552
)
vs. ) Knox County
)
DAVID C. DOYAL, ) Hon. Richard Baumgartner, Judge
)
Appellee. ) (Motion to Suppress - State Appeal)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP DONALD R. COFFEY
Attorney General & Reporter Attorney at Law
625 S. Gay St.
TODD R. KELLEY Knoxville, TN 37902
Asst. Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
SCOTT GREEN
Asst. District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED:________________
REVERSED & REMANDED
CURWOOD WITT, JUDGE
OPINION
The State of Tennessee appeals the trial court's suppression of
evidence pertaining to a University of Tennessee security officer's off-campus,
warrantless arrest of the defendant. The trial court suppressed the evidence based
upon its conclusion that the officer was without lawful authority to effectuate the
arrest under the circumstances of the case. The sole issue in this appeal is whether
the trial court was correct in this conclusion.1 Having reviewed the record, briefs,
and arguments of the parties, we find merit in the state's argument, reverse the trial
court's suppression ruling, and remand this matter for further proceedings.
The evidence of record consists entirely of evidence introduced by the
state at a suppression hearing. The defendant's vehicle struck some street
barricades on the University of Tennessee, Knoxville campus. A maintenance
worker witnessed this incident and radioed its occurrence to the UT security office
dispatcher. The dispatcher relayed the information on the frequency used by
university security officers. Officer Vincent Busico was on campus near the area
where the barricades were struck, and he went to the scene and saw the downed
barricades. The maintenance worker, driving his truck, had followed the defendant
and relayed the defendant’s position and course to the UT dispatcher who, in turn,
relayed the information to Officer Busico. Officer Busico pursued the defendant via
these transmittal directions. The chase soon left campus. The maintenance
1
The state brings its appeal pursuant to Tennessee Rule of Appellate
Procedure 3(c), which allows the state to appeal as of right from orders which
have "the substantive effect of dismissing an indictment . . . ." Tenn. R. App. P.
3(c). We agree that the substantive effect of the suppression order is dismissal
of the DUI count of the indictment. W e are not so persuaded as to the reckless
driving count. However, the defendant has not challenged this court's authority
to consider the suppression ruling as regards the reckless driving count, and as
the supreme court has said, an appellate court has the authority to consider an
appeal brought improperly under Rule 3(c) as a Rule 10 appeal. See State v.
Gallaher, 730 S.W.2d 622, 623 (Tenn. 1987); compare Tenn. R. App. P. 3(c)
(appeal as of right by state) with Tenn. R. App. P. 10 (extraordinary appeal by
permission on original application in appellate court).
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employee continued following the defendant and broadcasting information, and the
dispatcher continued to relay it over the frequency monitored by university police.
Officer Busico did not have visual contact for most of the chase; however, he and
another officer maintained pursuit by listening to the broadcasts.
Officer Busico did not catch up to the defendant until they were
approximately 13 miles off campus at the Rutledge Pike Exit of Interstate 40. He
observed the defendant was driving fast and very erratically. Officer Busico had his
blue lights operating, and the defendant pulled over for him after leaving the
interstate at the Rutledge Pike Exit. When Officer Busico approached the
defendant's vehicle, he noticed a strong odor of alcohol. The defendant told the
officer he had consumed about four beers. After performing a field sobriety test,
Officer Busico placed the defendant under arrest for second offense DUI.
Subsequently, the defendant was indicted for second offense DUI and reckless
driving.
The issue for our determination is whether Officer Busico lawfully
arrested the defendant. We hold that he did.
University of Tennessee security officers "have all the police powers
necessary to enforce all state laws as well as rules and regulations of the board of
regents and the board of trustees." Tenn. Code Ann. § 49-7-118(d) (Supp. 1997).
This authority "extends to all facilities or property owned, leased or operated by the
board of regents or the board of trustees, including any public roads or rights-of-way
which are contiguous to or within the perimeter of such facilities or property." Tenn.
Code Ann. § 49-7-118(d) (Supp. 1997). The powers of law enforcement officers in
Tennessee include the authority to effect an arrest of a suspect who has committed
a misdemeanor in the officer's presence. See Tenn. Code Ann. § 40-7-103(a)(1)
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(1997). On occasion, this court has interpreted the officer's "presence" broadly,
finding it may exist where the arresting officer did not witness the crime but has
received information from another law enforcement official who was witness to the
misdemeanor. See State v. Teri L. Hopson, No. 03C01-9601-CC-00007, slip op.
at 5-6 (Tenn. Crim. App., Knoxville, July 8, 1997); State v. Maxie Lewis Hunter, No.
89-101-III (Tenn. Crim. App., Nashville, Oct. 13, 1989); State v. Bryant, 678 S.W.2d
480, 483 (Tenn. Crim. App. 1984). But see Williams v. State, 506 S.W.2d 193, 197
(Tenn. Crim. App. 1973) ("[A]n offense is not committed in the presence of an
officer when its commission is communicated to him by another.") (citations
omitted).
We begin by noting that there is no question that Officer Busico was
well beyond the bounds of his jurisdictional confines of the UT campus and
contiguous or peripheral public roads or rights-of-way when he arrested the
defendant. Thus, in order for the arrest to be valid, it must fit within an exception
to the usual territorial limits placed on the university security officer's authority by
virtue of Code section 49-7-118(d) (Supp. 1997).
First, our review of the facts presented at the suppression hearing
leads us to conclude that the defendant's alleged actions on campus amount, at
most, to a misdemeanor. 2 Unfortunately, neither party inquired of Officer Busico
regarding his purpose in chasing the defendant off campus. We question whether
he planned to arrest the defendant for anything that happened on campus because
once he apprehended the defendant, he only cited the defendant for DUI.3 Perhaps
2
The state does not contend that the defendant committed a felony on
campus.
3
The defendant was later indicted for reckless driving. The record does
not reflect whether this charge is premised upon the events which are alleged to
have occurred on campus, on the interstate, or both.
4
Officer Busico was merely going to investigate the alleged incident on campus,
hoping to see the defendant's vehicle and license tag so that he might determine
his identity and obtain an arrest warrant. Perhaps the officer planned to talk to the
defendant to see whether he admitted striking the barricades. Simply put, we do not
know.
Because the record does not reveal that Officer Busico was in pursuit
of the defendant in order to arrest him for a misdemeanor witnessed by the
university maintenance employee, it is unnecessary for us to consider whether the
Hopson/Hunter/Bryant expansion of an officer's "presence" should be applied when
the person who witnessed the misdemeanor is not also a law enforcement officer.
Without evidence of Officer Busico's intent to arrest the defendant pursuant to the
on-campus incident, the Hopson/Hunter/Bryant line of authority provides no basis
for the arrest.
This, however, does not terminate our inquiry. In Tennessee, private
citizens have the authority to effectuate warrantless arrests for misdemeanors
committed in their presence. Tenn. Code Ann. § 40-7-109(a)(1) (1997). On
occasion, courts have interpreted the "citizen's arrest" statute to cure defective
warrantless arrests by law enforcement officers acting outside their jurisdiction.
See, e.g., United States v. Layne, 6 F.3d 396 (6th Cir. 1993) (applying Tennessee
law); State v. Johnson, 661 S.W.2d 854 (Tenn. 1983).
We find the case at bar controlled by our previous decision in State
v. Horace Durham, No. 01C01-9503-CC-00056 (Tenn. Crim. App., Nashville, Nov.
16, 1995). In that case, an undercover police officer observed the obviously
intoxicated defendant leave a club and begin driving a vehicle. Horace Durham, slip
op. at 2. The undercover officer began following the defendant and called the city
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police department, which dispatched an officer. Horace Durham, slip op. at 2. The
undercover officer stayed on the phone with the police department while following
the defendant. Horace Durham, slip op. at 2. The city police officer eventually
caught up to the defendant and observed his erratic driving; however, the officer
was beyond his jurisdictional territory when he first observed and stopped the
defendant. Horace Durham, slip op. at 2. The city police officer was on duty, in
uniform, driving a patrol car, and had the car's blue lights operating when he
stopped the defendant. Horace Durham, slip op. at 3. The officer ultimately
arrested the defendant for DUI. Horace Durham, slip op. at 2. We determined that
the arrest was a lawful citizen's arrest, finding that the officer had probable cause
for the initial stop and that "a police officer does not give up the right to act as a
private citizen when he is off duty or out of his jurisdiction." Horace Durham, slip op.
at 4 (citation omitted). Further, we rationalized that under the circumstances
presented in that case, "it is good public policy to encourage a police officer to stop
an apparently intoxicated driver who is endangering both himself and the public."
Horace Durham, slip op. at 5.
The case at bar is like Horace Durham. Whatever Officer Busico's
purpose was in pursuing the defendant, by the time he stopped the defendant he
clearly had probable cause to do so. During the pursuit, Officer Busico had
observed the defendant driving fast and very erratically. He had seen "broken-up
and busted-up barricades" shortly beforehand, and he had information that the
defendant was the one who had driven into the barricades. Although the record
does not support a conclusion that Officer Busico was vested with official authority
to arrest the defendant at this time, he certainly had the authority to effect a citizen's
arrest for DUI based upon his own observations. In accord with our holding in
Horace Durham, such a result promotes the public policy of allowing out-of-
jurisdiction law enforcement officials to remove suspected drunken drivers from the
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road before their irresponsible actions result in loss of life, permanent injury and/or
property damage to themselves or innocent third parties.
Accordingly, we reverse the trial court's order suppressing evidence
obtained as a result of the defendant's arrest. We remand this matter to the trial
court for further proceedings.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_____________________________
PAUL G. SUMMERS, JUDGE
_____________________________
JERRY L. SMITH, JUDGE
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