### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 15, 2002 Se ssion
STATE OF TENN ESSEE v. ROGER D . HARRISON Direct Appeal from the Circuit Court for Williamson County No. II-100-601 Timothy L. Easter, Judge

No. M2002-00603-CCA-R3-CD - F iled March 7, 2003

The Appellant, Roger D. Harrison, was convicted, following a bench trial, of DUI , second offense. On appeal, Harrison challengeshis conviction upon grounds that: (1) the trialcourt erred by denying his motion to sup

press evidence o f driv i ng under the influence beca use there was insufficient probable cause to stop his vehicle and his pr e- arrest period of detention was excessive and unreasonable, and (2) the evidence was insufficient to support his conviction. Although not raised as an issue on appeal, we find it necessary to address the q u estion of whether a federal law enforcement

officer, when acting bey

ond his assigned federal duties and jurisdiction, may lawfully stop or seize a pe

rson who c ommits a sta

te traffic offense in his presence. Af ter review, we find the federal offi cer in this case had state authority to stop Harrison’s vehicle. Moreover, finding Harrison’s issues on appeal without merit, the judgment of the trial court is af firmed.

Tenn. R. App.P. 3; Judg ment of t he Circui t Court A ffirmed.
D AV ID G. H AYES , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OHN E VERE TT W ILLI AMS , JJ., joined. Judson W. Phillips, Franklin, Tennessee, for the Appellant, Roger D. Harrison.
Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor G eneral ; Christine

M. Lapp s, Ass is tan t At to rne y Gen era l; Ro ger L. Davis, District Attorney Gene ral; and Matt Colvard, Assistant District Attorney Gene ral, for the Appellee, State of Tennessee.

OPINION
Factua l Background
On February

16, 2001, the Appellant was stopped on State Highway 840 in Williamson County by Tennessee

Valley Authority

(“TVA”) law enforceme

nt officer Kevin Pollard. At the time-2-

Pollar d, who was returning home from work, was wea ring a TVA police uniform, carry ing a side arm, and dr ivin g a desi gn ated TVA police vehicle with emerge ncy lights. The

traffic stop was initiated after Pollard observed the Appellant cross the fog line three

times on a c lear nig

ht, while traveling well below the posted speed limit. As Officer Pollard ap proach ed the Appellant, he observed that the Appellant smelled of alcohol, his ey es were bloodshot, and his speech was slurred. Pollard testified that he believed the Appellant was intoxicated. He returned to hi s patrol car and radioedthe Williamson County Sheriff’s Office, pursua nt to the TVA policy

which required him to contact appropr iate loca l law enf orceme nt office rs u nde r such ci

rcumstan ces. Because of

radio transmission problems, Pollard was forced to contact the sheriff’s offic e by ce ll phone. According to his trial testimony, it took the Williamson Count y dep uty approximately thirty to thirty -five minutes to arrive at the scene. Upon arrival, the responding officer, D eputy Clark, brief ly confer red with Pollard and then approached

the Appellant’s ve

hicle. He also notic ed that th

e Appella nt s melled of al cohol, had bloodshot eyes, and slurr

ed speech. TheAppellant admitted to Deputy Clark that he had consumed six beers earlier in the e ven ing. Cla rk reque sted that t

he Appellant exit the

vehicle in order to perform field sobriety tests. According to Clark, the Appellant failed to successfully complete the three tests and was then placed under arrest. Clark tra

nsported the Appellant to Willi amson Coun ty Medical Center, where a

blood alcohol test was conducted. The test results indicated a .16% blood alcohol concentration level.
On June 11, 200 1, the Willia mson County

Grand Jury

returne d a three

count in di ctment chargingt he Appel la nt with: (1) driving under the influence of an intoxicant; (2) driving with a blood alcohol level of .10% or greater; a nd (3) driving under the influence, sec ond offense.
At a bench trial on Jan

uary 15, 2002, t

he Appellant was f

ound gui lty o f counts 1 and 3, wi th count 2 being dismissed. He was se

ntenced to eleve n months, twenty-nine day s at 100%, which was suspended after the service of forty -five day s in the county jail. Analysis I. Officer’s Authority to Effectuate Stop
Alth ough not chall enged

on appea l, we first find it necessary to examine the finding of the trial court tha

t Office r Pollard had polic e author

ity to stop the Ap pellant’s vehicle. If no police authority existed, the Appellant’s stop would be reviewed under the provisions of Tennessee Code Annotated § 40-7-109, arrest by private person. This issue was briefly r aised by the Appellant at a supp ressio n hearing . Office r Pollard testifie d at the he aring t

hat his au thority to act in th

is case derivedfrom “Cha

pter 76 of the Public

Acts. ” Chapter 76 o f the Publi c Acts of 1989, whic

h is codifie d at Tennessee Co de Annota ted § 38-3 -120, pro vides in r elevant part as f ollows: (a) The Tennessee valley

authority (here

inafter referred to as “TV A”) may apply to the commissioner

of safety f

or the appointment and commissioning of such number-3-

of its agents, servants, or employees as TVAshall designate to act as peace o fficer s, as provided in this section. The commissioner, upon such app lication, shallappoint such persons as TVA designates to be such peace officers, and shall give commissions to those app ointed. A ny a gent, se rvant, or employ ee of TVA so designated shall be eligible for such a ppointment and commission. . . . (c) Ea ch such officer, throughout ever y county in the state in which TVA does business, operates, or owns or controls property , including leaseholds and rights-ofwa y, shallhave a nd exercise, for the sole purpose of carry ing out the scope of assigned duties as sp ecified or limited within the exclusive judgment of the TVA boardof directors, all of the powers of a pea ce offi cer, inc luding th

e power to make arrestsfor public offenses committed against TVA offic ials or employees or committed upon, about, or against TVA property or on public roads or rights-of-way passing through or over such property , and, while in pursuit of a person fleeing after committing such an offense, may pursue the person and make arrest anywhere in the stat e. Furt her, such officers may provide security a

t TVA’s nuclear facilities, may serve process in criminal and penal pr os ecutions for such offenses, and shall have authority to carry weapons for the reasonable purposes of the ir offices and while

in the performance of their assigne d duties. Notwithstanding any othe r prov ision o f law, the authorities , responsibilities and liabilities of such officers shall be limited as provided for under this section. (emphasis added).
Officer Pollard te stified th at he had been duly

appointe d and comm

issioned to

act as a peace officer by the Commissioner of

Safety for the

State of Tennessee. At the conclusion of the hearing, the trial court found that Officer Pollard, by virtue of his appointment as a peace officer by the State of Tennessee, possessed police authority to stop the Appellant’s vehicle.
The provisions of Tennessee Code Annotate d § 38-3-1 20 clear ly p rovide th at the au

thority of a TVA of ficer a cting a s a state p eace of

ficer “ shallbe limited as provided for under this section.” Tenn. Code Ann. § 38-3-120(c). The act of a TVA officer stopping a motorist for an investigatory traffic stop not occurring on TVA pr operty , nor on sta

te prope rty traver sing TVA

propert y, n or in pursuit of a person who has committed a crime on TVA property , is not authorized by the statute. Ac co rd in gl y, we find the trial court’s ruling was error . Notwithstanding, we find the provisions of Tenness ee Code A

nnotated § 38-3-11 3 applica

ble. This s tatute pr

ovides in r

elevant part:
A sworn feder al law enforcement officer, who in of ficial capacity

is authorized by law to m ake arrests, shall, when making an ar rest in this state for a nonfeder a l offense, have the same legal status and immuni ty f

rom su it as a state or local law enforcement officer if such ar rest is made under the following circumstances: . . .1 Although Pollard’ s tes timony also r evealed t hat he believed that t

he App ellant’s driving constituted reckless driving, thi s incor

rect bel ief is not

fat al to a valid stop of t he Appellant’s vehicl e. This court held in State v. Duer , 616 S.W .2d 614 (T enn. Crim. App. 1981):

W here an office r mak es an a rrest wh ich is pro perly supp orted by pro bab le caus e to arrest for one offense, neither hi s subjective rel iance on a n offens e fo r which no pro bab le cause exists no r his verbal announcement of the wrong offense vit iates t he arrest. Id . at

616 (ci ti ng 6A C.J.S. Arrest § 21(1 975 )). . . . In other wo rds, the test does not res t on t he off icer ’s subj ecti ve conclus ion as t o what of fense has been committed. Rather, the test is whether the facts a n d circumstances present are suffi cient to e nabl e t he c ourt to s ee t hat some off

ens e ha s be en c ommi tt ed that
wou ld hav e justified a legal a rrest. Id. -4- (2) The officer reasonably believes the person ar

res ted has committed a misdemeanor that amounts to

a breach of the peace in the off icer’s presence or is committing such a misdemeanor in the officer’s presenc e; . . . (emphas is added). The proo f in this case established that TVA Officer Pollard wa s a sworn federal law enforcemen t officer, and that he reasonably believed the Appellant’s driving constituted a misdemeanor

committed in his presence. Pollard testified at trial that the Appellant had committed the traffic offense of

“failur e to mainta

in lane.” Tennessee Code Annotated § 55-8-123(1) requires that a vehicle shall “be driven as nea rly prac ticable entirely within a sing le lane and shall not be moved from suc h lane unt il the driv er has f

irst asce rtained that such moveme nt can be ma

de with safety.” 1 Accordingly , we conclude that TVA Officer Pollard “ha [d] the same leg al status” as a state or local law enforcement officer would have had in making stop of the Appellant’s vehicle.
II. Motio n to Suppress
Firs t, the Appel lant cont ends that the trial court er red in de nying his mot

ion to suppr

ess because (1) the officer

lacked probable cause to make the stop and (2) even if probable cause existed, the period of detention before hi s a rrest was unreasonable. “Probable ca use” is not required for a police officer to make a limited stop to investigate suspected criminal activity when the

officer can “point t o specific and arti culable facts wh ich, take n togeth er with r ational in ferenc es from those facts, reasonably

warrant that intrusion.” Terry v. O hio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968);
see a lso State v . Binette , 33 S.W.3d 215, 218 (Tenn. 2000). Courts considering the issue of reasona ble suspicion must look to the total ity of the circumsta

nces and s hould

“jud ge[] by weig

hing the gravity

of the public conce rn, th e degree to which the seizure adva nces that concern, and the se verity of the intrusion into individual privacy.” State v. Pulley , 863 S.W.2d 29, 30 (Tenn

. 1993)(citing Brown v. Texas , 443 U.S. 47, 50, 99 S. Ct. 2637, 2640 (1979)). The Appellant does not dispute the fact that he crossed the fog line three di ffere

nt times on a

clear n ight whil e traveling well below the posted speed. Ba sed upon these articulable facts, we find that Off icer Pollard was warranted in making an investigator y stop of the Appellant’s ve hicle.
With regar

d to the period of

detention, we agree that the detention must “last no long er than is necessary

to effectuate the purpose of the stop.” Florida v. Royer , 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (198 3); State v. England , 19 S.W.3d 762, 767-68 (Tenn. 2000). Moreover, the officer2 Offic er Pollard testi fied at t he suppression hearing t hat he stopped the Appel lan t be twe en 11: 00 and 11:3 0 p.m

. Howeve r, at t rial Pollar d ind icated that it was b etwee n 10 :00 a nd 1 0:30 p.m. D epu ty Clark was co nsistent in his testi mony that he ar rived at the sce ne at 1 2:03 a.m. A lthoug h Po llard testif ied t o di ffe rent t imes f or the s top, he wa s con sistent in his testim ony tha t app roxim ately thirty to thirty-five minute s elaps ed b efore the de puty arr ived. -5- should employ the leas t intrusive

means re asonably

availab le to inve stigate

his or her suspicion s in a short period of time. Florida v. Royer , 460 U.S. at 500, 103 S. Ct. at 1325-26. As our supre me court has held, “ the proper inquiry is whether during the

detentio n, the poli ce dilig ently pursued a means of invest

i gation tha t was likely to confirm or dispel their suspicions quickly .” State v. Simpson , 968 S.W.2d 776, 783 (Tenn. 1998) (citations omitted). The trial court found that any delay that occurred during the investiga tive stop was entirely re asonable. We agree. The record demonstrates that Off

icer Polla rd did “di ligently

” pursue his duties in order t

o resolve the situation. The radio pr

oblems he

encounte red wer e beyond his control. We c onclude that the period of approxima

tely thirty-five minutes, under the circumst ances of this case , was not a

n unreas onable period of deten tion. 2 The Appellant’s reliance upon State v. Morelock , 851 S.W.2d 838 (Tenn. Crim. App. 1992 ), is misplaced. In Morelock , the period of detention which was challenged as being unreasonable, occurred while the motorist was held without reasona ble suspic ion or pro

bable ca use to arre st. Acco

rdingly , we find

the Appellant’s su

ppressio n issues wi

thout meri

t.
I II. Sufficiency of the Evidence
In his final issue, the Appellant contends that the evidence is insufficient to support hi s conviction for driving under the influence. Where the sufficiency of the evidence is challenged, the relevant question f

or an app ellate c ourt is whe ther, af ter view ing the e

vidence in the lig

ht most favora ble to the prosecution, any r ational trier of fact could have found the essential e lements of the crime or crimes beyond a re asonable doubt. Tenn. R. App. P. 13(e) ; Jacks on v. Virg inia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). On appeal, the State is entitledto the strongest view of the evidence and all reasonable inferences whic h may be drawn therefrom. State v. Bigbee , 885 S.W.2d 797, 803 ( Tenn. 199 4); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
Imme diately

after his stop, which was based up on reason able suspicion, the Appellant smelled of

alcohol, his eyes we

re bloodshot, and his speech was slurred. These observa tions were confirmed

approximately one-half hour later by a second officer. The Appellant ad mitted to drinking six beers e arli er that evening. He failed three field sobriety tests, and a c hemical test performed some time late

r establi shed the A

ppellant ’s blood a

lcohol level at .16 %. We find these facts more than sufficie

nt to permi

t a fact finder to conclude bey ond a reasonable doubt that the Appellant was guilty of drivin g while

intoxicate d. This issu e is withou t merit.-6- CONCLUSION
For the above stated reasons, we conclude that Officer Pollard’s extra-territorial stop of the Appellant’s vehicle was conducted under police authority, and that the stop was proper. Moreover, we conclude that the evidence is sufficient to support the Appellant’s conviction for DUI , second offense. Accordingly , the judgment of the trial court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE