### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs M

arch 20, 2001 STATE OF TENNESSEE v. JASHUA S HANNON SIDES Direct Appeal from the Criminal Court for Hamilton County Nos. 225250 and 225251 Rebecca J. Stern, Judge

No. E2000-01422-CCA-R3-CD May 16, 2001 This is a state appeal from the suppression of evidence. The defendant was indict ed for dr iving under the influence (DUI), second offense, and leaving thescene of an accident. The defendant filed a motion to suppress

which the trial court

granted. In this appeal, the state alleges that the trial court erroneously

concl uded the d efendant was unlawfully arrested, or, in the alternative, the or der of suppression was overbroad. Upon review of the record, we modify the order of suppression to allow evidence gathered prior to the unlawful arrest. We remand for further pr oceedings. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Remanded J OE G. R ILEY , J., delivered the o pinion of the court

, in which A LAN E. G LENN , J., joined. J ERRY L. S MITH , J., filed a dissenting opinion. Paul G. S umm ers , At tor ney G ener al a nd R epo rte r; R . St eph en J obe , As sis tan t At tor ney G eneral; William H. Cox III, District Attorney General; and Dean

C. Ferr aro, Assistant District Attorney General, for the appellant, State of Tennessee. Mike A. Little,

Chattanooga, Te

nnessee, for the

appellee, Jashua S

hannon Sides.

OPINION The defendant was indi cted for DU I, second offense, and leaving the scene of an a ccident involving property damage. The trial court suppressed the “

breath alcohol te

st, field sobriety test and any stateme

nts made by th

e Defendant,” f

inding the defe

ndant was unlawf

ully arrested. The state alleges on appeal that the tri al court erred in granting the defendant’s motion to suppress. Upon review of the record, we conclude that the suppression order was overbroad, and we modify it so that only the evidence obt

ained after the

defendant's ill

egal arrest is

suppressed. Any evidence obtained prior to his illegal seizu

re is admiss ible relative to the charges of leaving the scene of an accident and/or DUI.-2- FACTS Officer Joseph E. Kerr test

ified that he resp

onded to a call

on August

25, 1998, regarding an automobile

accident. Upon arrival, he observed a single car with its front end in a dit ch and the remainder

of the vehicle blo

cking one lane o

f traffic. The d

river of the vehi

clewas not at the scene. Volunteer firefighter Anthony Travis informed Officer K err that while he was in route to the accident scene, he saw a man

enter a stopped vehicle but was unable to further describe either the person or the vehicle. Officer Kerr tes tified tha t he recognized the wrecked vehicle as belonging to the defendant as a result of an incident which occurred approximately one week prior. While Kerr

was comp leting the accident report, he recognized a vehicle passing the scene as one that belonged to the defendant’s wife. He further observed a p asseng er in the vehicle who matchedthe description of the defendant, which he recalled from the incident one week prior. The vehicle proceeded away

from the accide

nt scene, but it

returned shortly

thereafter. As

the vehicle passedthe scene the second time, Officer Kerr ordered it to stop, went to the passenger’s side, and requested the passenger’s name. The passenger responded with a name other than defendant’s, but since Kerr suspected

the passenger

was the defenda

nt, Kerr ordered t

he passenger o

ut of the vehicle andtold him to stand near the wrecked vehicle. Subsequently, Officer Kerr returned to the stopped vehicle and ask ed the driver, Ms.

Sides, the name of h

er passenger

. Ms. Sides replied t

hat t h e passenger was Jashua Sides, the defendant, and she produced his driver’s license from

between the car’s seats. Officer Kerr returned

to the wrecked veh

icleand questioned the defendant. The defendant initially told Kerr that

his cousin

was the driver of the wrecked vehicle, but subsequently admitted that he was the driver. Kerr then arrested the defendant for leaving the scene of an accident. Officer Kerr further testified that while questioning the defendant, he “thought [he] detected an odor of alcohol, not

a strong odor, but an odor of alcohol.” After the arrest for leaving the sce ne of an accident, the

defendant was tr

ansported to the sh

eriff’s depar

tment and submitted t

o a breathalyzer

test. There was no testimony as to the test results, but Of ficer Kerr testified that he arrested the defendant for DUI after g etting the breathalyzer results. Defense counsel contended at the suppression hearing that, although the off

icer had probab

le cause to secure an arrest warrant for leaving the scene of an accident, he could not arrest the defendant without a warrant since the offense did not occur in the o fficer’s prese nce. See Tenn. C ode Ann. § 40-7-103(a)(1). The state argued that the statute expressly a uthorizes a war

rantles s arrest “at the scene of

a traffic accident” where the officer has probable cause to believe the person committed a traffic offense. See Tenn. Code Ann. § 40-7-103(a)(6). The trial court rejected the state’s argument, finding that Tenn. Code Ann. § 40-7-103(a)(6) didnot apply

since the defendant was “brought back to the scene by somebody e lse.” The trial court concluded

the officer did not have the authority to arrest the defendant for leaving the scene of an accident w itho ut an arrest war

rant. The trial c

ourt then ordere

d the suppression o

f “the breath-3-

al cohol test, field sobrie

ty test and a

ny statemen

ts made by the

defendant.” The

state timely

file d notice of appeal.

SUPPRESSION OF EVIDENCE A. Standard of Review The findings of fact made by the trial court at the hearing on a motion to suppress are binding upon this Court unless the e vidence conta ined in the record preponderates against them. State v. England , 19 S.W.3d 762, 766 (T enn. 2000). Howe

ver, thisCourt is not bound by the trial court’s conclusions of law. State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998). The application of the law to the facts found by the trial court are questions of law that this court

reviews de novo

. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000). B. Suppression Analysis The trial court suppre

ssed the evidenc

e of the breatha

lyzer result

s, any field

sobriety te

sts, and any statements made by the def endant, based on the conclusion that the defendant was not “at the scene” of

the accident when he was arrested for leaving the scene of an accident. See Tenn. Code Ann. § 40-7-103(a)(6). In Tennessee, absent an

exception, a warrantless arrest for a misdemeanor not committed in the officer’s presence is illegal. Tenn. Code Ann. § 40-7-103(a)(1 ); State v. Duer , 616 S.W.2d 614, 615 (Tenn. Crim. Ap

p. 1981). Howeve

r, the statute fur

ther provides: An officer may

, without a warra

nt, arrest a p erson . . . [a]t the sc ene of a traffi

c accident who is the driver of a vehicle involved in such acc ident whe n, based on personal investigation, the officer has probable cause to believe that such person has committed an offense und er the provisions of title 55, chapters 8 and 10. The provisions of this subdivision shall not apply to traffic accidents in which no personal inju ryoccur s or property

damage is less th

an one thousand do

llars ($1,000) unl

ess the officer has probable cause to believe that the driver of such v ehicle has committed an offense under § 55-10-401 [DUI]. Tenn. Code Ann. § 40-7-103(a)(6). The defendant argued at the suppression hearing that

because he initially fled the scene, he was not arrested “a

t the scene of a tr

affic acciden

t;” thus, the warr

antless a rrest was illeg al. In suppor t of the defendant’s argument, he argues the applicability of State v. Thad Thomas Folds , C.C.A. No. 01C01-9308 -CC-00278, 1995 WL 89701 (Tenn. Crim. App. filed March 3, 1995, at Nashville) (holding that “the ‘scene of the accident’ as contemplated by the legislature whe n drafting1 Although we question whether T enn. Cod e Ann. § 5 5-10-10 2 applies to a one-vehic le accident, it is

unnecessary for us to address that issue. The state in this court i s no longer r elyin g upon the w arrantl

ess arre st for

leaving the scene of a n accident.

2 We have carefu lly examined the transcript o f the suppress ion hearing. T here was on ly a bri ef reference to DUI in the st

ate’s argument

when the prosecut

or stated, “after

arresting

him on [leavin

g the scene of t

he accident] i s when he received info rmation on the driving und er the influence . Based o n th at he had pr oba ble cause that the defendant committed driving under t he influen

ce as well. ” We conclude it was not t he state’ s position at

the hearing t

hat the off

icer had pro bable cau se to arrest for D UI at the sce ne of the acc ident. -4- this statute does not include [a] situation in which t he arrest occur

red at the scene

, but only after the driver was required to return there by law enfor cement”)

. It is apparent from a review of the hearing that the state, defense counsel, and the trial court felt that Officer Kerr had probable cause to believe the defendant left the sce ne of anaccident

with property damage in violation of Tenn. Code Ann. § 55-10-102(a). 1 Accordingly, they only addressed whether the arrest occurred at the scene of the accident. The record is silent as to whether there was any property damag e to the vehicle. We are unable to assume that the state, defense counsel and the trial court were all satisfied that there was property damage over $1,000. Since there was no testimony, statements by counsel, argument or r emarks by the trial c

ourt concerning

property da

mage, we are u

nable to make this

assumption

. Since the burden was up

on the state at the

hearing to

establish the applicability of the statute, we are unable to assume facts necessary to establish this essential element. Regar dless, the state in its brief in this court now concedes that the warrantless arrest fo r leaving the scene of an accident involving prop erty damage w as illegal. We see no need to look behind its con cess ion . Du e to thi s co nces sio n, w e nee d no t an alyz e further whether the arrest for leaving the scene of an accident was lawful, or whet he r an officer ha

s the authority

to continue to hold a person in custody for such a violation, rather than issue a citation. See Tenn. Code Ann. § 40- 7-118(b); State v. Walker , 12 S.W.3d 460, 464 (Tenn. 2000). Although the state argued at the suppression hearing that probable cause for the arrest was basedon the violation of l eaving the sce

ne of an accide

nt, it now contends on appeal that the officer hadprobable cause

to arrest the de fenda nt at t he sce ne for DUI. 2 Since an app ellant cann ot change theories from the trial cou rt to the appellate

court, this ordinarily waivesthe issue. State v. Dooley , 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000)

. Regardless

of waiver, the only testimony relating to alcohol prior to the defendant’s arre s t at the scene was Officer Kerr’s statement, “I thoug ht I detected an odor

of alcohol, not a strong odor, but an odor of alc

ohol.” This

is insufficient to e

stablish probable cause to arrest

the defendant for DUI. This testimony did sufficiently establish the right of the office r to briefly de

tain the defendant at the sceneand administer field sobriety tests or otherwise ascertain defendant’s state of sob rie ty. See State v. Yeargan , 958 S.W.2d 626 , 633 (Tenn. 1997). How ever, the reco

rd is silent as to3 As stated, we question the applicabili ty of Tenn. Code Ann. § 55-10-102 to a one-vehicle accident. However, that issue is not be fore us. -5- whether field sobriety tests were

administered, or whether the officer had any other ba sis to believe the defendant was impaired. The only testimony est

ablishing proba

ble cause to

arrest for DUI was the officer’s testimony that he arrested the defendant for DUI after the breathalyzer was administered at the sheriff’s de

partment. This was after defendant had been illegally ar rested for leaving the scene of an accident. Therefore, the defendant wa s illegally detained when he

was transp orted to the sheriff’s department. The results of the breathaly zer test administer

ed there are ina

dmissible

. Acco rdi ngly, the record before

the court does not e

stablish probable

cause for a DUI

arrest at the scene of the accident, and any evidence obtained after the a rrest should be suppressed. C. Overbroad Suppression Order The state contends that even if thearrest of the defendant at the scene was unlawful, the order of suppression is

overbroad. The state notes that the trial court suppressed not only the breathalyzer test, but also field sobr

iety tests and any statements made by the defendant to the p

olice. The state now contends there w

as a “great de

al of routin

e, on-the- scene investigation, including interaction between[the defendant] and Officer Kerr, wh ich occurred prior to the arrest,” and this evidence could be utilized in this prosecution. The only issue addressed

at the suppression

hearing was wh

ether the defen

dant was properl

y arrested at the scene of the accident. The state did not attempt to estab

lish probable cau

se to arrest for DUI at the scene. Likewise, whether or not there was an actual violation of leaving the scene of an accident involvin

g property

damages was no

t l itigated. Se e Tenn. Code Ann. § 55-10-102 (prop erty damages in any amount may r esult in prosecution). 3 The parties only litigated wheth

e r there was a valid warr

antless arrest, which requires property damage s of $1,000 or more. See Tenn. Code Ann. § 40-7-103(a)(6). Only evidence obtained as a result of the illegal seizure should be suppressed. See generally Statev. Clark, 844 S.W.2d 597, 600 (Tenn . 1992) (c itations o mitted). We

conclude that the on-thescene stop and questioning of the defendant was pr ope r. A ny e vidence developed prior to the unlawful arrest need not b e suppressed in the

event of prosec

uti on forleaving the scene of an accid ent an d/or D UI.-6- CONCLUSION Based upon our analy

sis, we affirm t

he judgment of the trial court to the extent of suppressing all evidence obta ined subsequent to

the defendant’s

illegal arrest

a t the scene of the accident. The state may uti lize any evid

ence obtained pr

ior to the arrest i

f it elects to proc

eed with the prosecution for leaving the scene of an accident and/or DUI

.

___________________________________ JOE G. RILEY, JUDGE