State v. Doyal

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 10, 1998
• Docket: 03C01-9712-CR-00552
• Status: Published

Opinion

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).

2 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)

3 (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

5 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

6 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