# FILED
July 8, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE JANUARY

1997 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C0 1-9601-CC- 00007 Appellee, * WASHINGTON COUN TY VS. * Honorab le Arden L. Hill, Jud ge TERI L. HOPSON, * (DUI Second Offense) Appellant. * For Appellant : For Appellee: James T. Bowman Charles W. Burson Attorney at Law Attorney Gen eral & Repor ter 128 East Market Street Johnson City , TN 37604 Glenn Eriks on Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Joe Crumley Assistant D istrict A

ttorney Gener

al P.O. Box 38 Jonesborough, TN 37659

OPINION FILE D: _____________________

AFFIRMED

GARY R. WADE, JUDGE1 W hile some pleadings refer to the defenda nt as "Terry L. Hopso n," i t is t he policy of thi s court to refe r to the defe nda nt as her n am e ap pea rs on the ind ictm ent. 2 OPINION The defendant, Teri L. Hops on, 1 was conv icted after a bench trial of DUI second offense. The trial cour t sentenced her t o eleven months , twenty -nine days; the defendant is to serve forty-five days in j ail at 100 perc ent with t he possibilit y for wor k release. H er driver's lic ense was revoked for two years. Proof on a defense motion to su ppress evi dence was pr esented during the course of the bench trial; a ruling that the arres t was law ful was made at t he conclusion of the trial.
The sole issue on appea l is whether the defendant was lawfully arrested for a mi sdemeanor offense, wher e the arresti ng officer did not witness the commission of the offense. B ecause we bel ieve the ar rest was proper, the judgment of the tr ial court i s affirmed.

On September 1, 1994, Officer Larry Robbins of the John son City Police Depar

tment was working off duty as a securi ty guar

d at a Krystal Restauran t when he obser

ved the defendant dr ive her v ehicle into t he parking lot. The officer described the defe ndant's driving as follows:

Miss Hops on was tur ning off of Market St reet onto ... Franklin. She was in the left hand lane, th ere's two turn lane s. M issHop son' s v ehic le c ut ac ros s fro m theleft hand lane into the right hand l ane in front of another vehicle an d that's the one t hat blew thehorn at her. And then she turned i nto the [K]rystal's park ing lot. As she turned in she [ ran] over the curb ....

Officer Robbins not ified the dispatc her to direc t an on-duty officer to investig ate a possible drunk driver. Meanw hile, the defendant had made a call on a pay telephone an d began to walk across the parking lot. Officer R obbins, who was3 in uniform, then ask

ed her to w ait for the on-dut y officer. The officer

acknowled ged that the defendant, due to h er impairment, was not free t o leave in her vehic le. Officer Robbins, who had be en trained in DUI enforceme nt and the use of f ield sobriety tests, wai ted at the scene unt il Officer Lori Cox was able to admini ster the tests. He w itnessed the defendant' s poor performance.

On cross-ex

amination, Officer R obbins testified that he had not arrested the defen dant and had not ph ysically restrained her in any fashion. He stated that the defendant, after concludingher telephone ca ll, wal ked towards the restaurant rather than towards her car; thus, h e concluded that the de fendant did not intend to dri ve away at that moment. On r

edirect, however, Officer Robbins reiterated that he would n ot have all owed the defendant to leave in her condition.

Officer Lori Cox

testified that upon her arriv al at the scene, Officer Robbins informed her

that he had seen the defendant drive i n a reckless manner. Officer Cox, who acknowledged that she never saw the defen dant drive her car, smelled alcohol on her breath. The defendant admitted that s he had been drinki ng and informed Officer Cox that she had stoppe d to use a phone. When the defendant performed poorly on the f ield tests, Officer Cox took her to the jail. W hile there, the defen dant failed additio nal field tests.

The trial cour

t ruled that th e arrest had bee n lawful and found t he defendant guilty

of DUI second offense: I don't think t hat Officer Cox saw enoug h to arrest t he defendant, because she was not in contr ol of the automobile, and while she was on a public parking place that met the criteria of on e of the elemen ts, and that in my opinion s he was under the influence of an int oxicant because of her failure to pass the sobr iety tests . But she did not commit dr iving under the influence of an intox icant

in theprese nce of M iss C ox. N ow, i n my4 opinion she did do actions before O fficer Robbins, and then he detained her , and then Officer Cox inve stigated and determined as t o exact w hat--what she should be charg ed wi th. And here w e havean offic er in uniform , whether he' s a private citiz en or an officer that' s detained her and turned her over to anothe r officer is almost immaterial. I don't think th ere's much differenc e in a private c itizen and an officer that's off duty except in the eyesof the ar reste e. All rig ht. I g uess I have made my decision. I' m of the opinion that O fficer Robbins detained, whi ch in my opi nion was a type of arres t. ... Officer Cox j ust transport ed her to the jai l. But it w as Officer Robbins[ '] case that he saw it and detained her. And I'm of the opinion that that's enoug h.

The defendant contends that her arrest v iolated Tenn. Code Ann. § 40-7-103(a)( 1), whic h provides that "[a]n officer may , without a warrant , arrest a person [f]or a publ ic offense committed ... in his pres ence." The defendant arg ues that because she di d not commit the offense in the presence of Officer Cox, the officer had no authori ty to arrest her and did not have a re asonable factual bas is for detaining her . We disagree.

In some older ca ses, our cour ts have str ictly an d literall y applied t he statutory limitation on warrantl ess arrests . In St. John v. State , 491 S.W.2d 629 (Tenn. Crim. Ap p. 1972), for example, an off-duty pol ice officer in H ernando, Mississippi, observed a vehicle driving in a reckless fashion towards Memphis, Tennessee. Id. at 630. The Mis sissippi o fficer notified Memphi s authorities , who subsequently

arrested the defendant. Id. The arresting officer testif ied "that he did not observe any unlawful act in his presence [and] ... [t]hat the basis for the arrest was the in formation he had rece ived from the M ississip pi officer." Id. at 631. Our court found that the ar rest was illegal

. Id. See also Williams v. State , 506 S.W.2d 193 (Tenn. Crim. App. 19 73).

In more recent cases, however, courts h ave held that in certain l imited5 circumstances an off icer may make an arrest for a misdem eanor even though it is not committed in hi s presence. See State v. Br yant , 678 S. W.2d 480 (Tenn. Crim

. App. 1984). In Bryant , a police officer observed a car traveling 110 mil es per hour. Id. at 482. After unsuc cessfully attempting to s top the car, the officer asked for assistance. Id. Moments later , a second officer, w ho had heard the di spatch, detained a car t hat matched the descr iption giv en. The first officer then arrived at the scene and made the arrest. Id. The second officer "obs erved no unl awful action ... [and] the stop wa s based entirel y on [the fir st officer's] tr

ansmission." Id. Our court ruled as follows:

W e note initially that this limitation on warrantless arrests for mi sdemeanors is no t constituti onally required. Further, in states that retain the rule, it is f requently held that in light of the increased spee d with which offenders may flee from a witnessing off icer and modern communications tec hniques available to the police, an offense may be said to have been committ ed in the presence of the arr

esting officer if he is in communi cation with and is assisting the witnessing officer. Id. at 483. In deter mining that t he initial d etention was lawful, thi s court rul ed that the prohibition against arrests for m isdemeanors not comm itted in the office r's pres encecoul d not

be read t o dep rive thewi tnes sin g offi cer of th e "as sis tanc e of a fellow officer w hen that assist ance is req uested in a rel iable manner." Id.

In State v. M axie Lew is Hunter , No. 89-101-I II (Tenn. Cri m. App., at Nashvil le, Oct. 13, 198 9), an officer obser ved an intox icated driver stop at a g as station. Id. , slip op. at 2. Because the w itnessing officer did not have "jurisdic tional authority, " he called a s econd officer who arriv ed about five minut es later. Id. , slip op. at 2-3. The arrest was made in the pre sence of the witnessing off icer. This court, noting that the purpose of the statute is t o "prevent g roundless mis demeanor arrests of ci tizens bas ed on hearsay or speculati on," upheld the arr est. Id. , slip op. at 4. "[A]ny harm that might occur from a warrantless [arrest] is cured when a police6 officer actually

witness es the offense and then communicates what he has observed, on the scene and after a very short span of time, to an officer authori zed to make the arrest in the parti cular geog raphical ju risdicti on." Id. , slip op. at 4-5. We cannot distinguish the r uling in Hunter from the facts in thi s case.

The defendant also contends that Officer Cox

did not have a sufficient factual basis for d etaining her . She bases thi s argument on ou r ruling in Stat e v. James Chester Cobb, Sr. , No. 01C01-901 1-CC-00308 (Tenn. Crim. App., at Nashvil le, May 7 , 1991). In Cobb , this court held the polic e officer did not have a sufficient f actual basis for conductin g an investigatory stop where the only information the officer had was based on a police di spatch whi ch was bas ed on an anonymous informant. Id. , slip op. at 1-2. Because th ere was no "indication ..

. whether the informant was 'credible' or whether the information g iven was reliable ," our court found the stop unlawful. Id. Here, however, the informant was a police officer whose i dentity and c redibilit y were known by

the arresti ng 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 ab le to ver ify much of the informat ion provi ded.

Accordingl y, the judg ment is affirmed.

__________________________________ Gary R. W ade, Ju dge CONCUR:

_______________________________ W illiam M. B arker, Ju dge7 _________________________________ Curwood Witt, Judge