FILED

July 8, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE 

JANUARY 1997 SESSION

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
1W hile some pleadings refer to the defendant as "Terry L. Hopson," it is the policy of this court

to refer to the defendant as her name appears on the indictment.

2

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 Her driver's license was revoked for two years.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
3

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
4

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
5

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
6

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