IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 18, 2011

STATE OF TENNESSEE v. JOHN WESLEY SHUTT, II

Appeal from the Williamson County Circuit Court

No. I-CR025437 Robbie Beal, Judge

No. M2011-01211-CCA-R3-CD - Filed August 10, 2012

The defendant, John Wesley Shutt, pled guilty to first offense DUI, a Class A

misdemeanor, and was sentenced to eleven months and twenty-nine days. As part of his plea

agreement, the defendant reserved a certified question of law: “whether the officer had

probable cause to make the arrest.” After careful review of the record, we agree with the trial

court that the officer involved had probable cause to arrest the defendant. We affirm the

judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETTWILLIAMS,J., delivered the opinion of the Court, in which JOSEPHM.TIPTON,

P.J., and JEFFREY S. BIVINS, J., joined.

Lee Ofman, of Franklin, Tennessee for the appellant, John Wesley Shutt, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Kim Helper, District Attorney General and Kelly Lawrence, Assistant District

Attorney General, 21 Judicial District, for the appellee, State of Tennessee.

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OPINION

FACTS AND PROCEDURAL HISTORY

On February 14, 2011, the defendant was indicted on four counts: (1) driving under

the influence of alcohol in violation of Tennessee Code Annotated section 55-10-401, (2)

driving with a blood alcohol content (“BAC”) greater than .08 percent in violation of the

same statute, (3) speeding in violation of Tennessee Code Annotated section 55-8-152, and

(4) failing to provide evidence of financial responsibility in violation of Tennessee Code
Annotated section 39-12-139(c). The defendant filed a pretrial motion to suppress certain

evidence alleging, inter alia, that the arresting officer lacked probable cause to make the

arrest. The trial court held a hearing concerning the defendant’s motion on May 9, 2011, at

which time the following evidence was presented:

The lone witness for the State was Trooper Allen Leverette of the Tennessee Highway

Patrol, who testified that he was patrolling the Brentwood area on the evening of September

25, 2005. He testified that around 9:45 p.m., he observed a black Audi traveling eastbound

on Moore’s Lane. Officer Leverette testified that this vehicle appeared to be speeding, and

when he checked the vehicle’s speed by radar it confirmed that the vehicle was traveling 47

m.p.h. in a 35 m.p.h. zone. Officer Leverette testified that he turned on his vehicle’s lights

and siren and initiated a traffic stop. After pulling the Audi over, he made contact with the

vehicle’s driver, whom he identified as the defendant. Officer Leverette testified that as he

was explaining to the defendant why he had been pulled over, he noticed the odor of alcohol

emanating from the vehicle. He testified that he asked the defendant if he had been drinking,

and the defendant responded that he had been consuming alcohol at Outback while watching

football.

Officer Leverette asked the defendant to step out of the vehicle. Officer Leverette

testified that after the defendant complied, he observed that he had bloodshot eyes, that his

speech was “a little thick,” and that he “was swaying back and forth.” Based on these

observations, Officer Leverette attempted to initiate field sobriety tests. The defendant told

the officer that he did not want to take “any . . . speculative tests,” but that he would be

willing to take a blood test. Officer Leverette testified that he then placed the defendant

under arrest and took him to the Williamson County Medical Center, where the defendant

was given a blood test.

On cross-examination, Officer Leverette testified that the defendant pulled over as

soon as he turned on his blue lights, and consequently he did not have any opportunity to

observe the defendant’s driving (other than to observe the speeding). Officer Leverette also

testified that the odor of alcohol coming from the defendant’s vehicle was “obvious.”

Officer Leverette testified that he had asked the defendant to exit his vehicle because of the

smell of alcohol and because of the defendant’s admission that he had been drinking that

evening. Officer Leverette also testified that the defendant was unsteady while he was

attempting to get out of his vehicle.

Defense counsel proceeded to impeach the witness with a prior statement from a

preliminary hearing, in which Officer Leverette had testified that the defendant had not had

any difficulty getting out of his vehicle. Defense counsel also impeached the witness with

prior testimony in which he had stated that he did not yet believe that the defendant was

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impaired at the time he asked the defendant to take the field sobriety tests.

Officer Leverette testified that he arrested the defendant immediately after the

defendant refused to take the field sobriety tests. He conceded that the defendant’s mental

state appeared to be normal prior to and following his arrest. Officer Leverette also testified

that there was no video recording of his encounter with the defendant on the night in question

because the video system in his vehicle was down due to a conflict between the vehicle’s

camera and its radio system. Officer Leverette testified that he did not read the defendant

his Miranda warnings following his arrest. Following this testimony the State rested.

The sole witness for the defense was Mr. Jon Lowrance. Mr. Lowrance testified that

he worked as an energy reduction consultant in Nashville, Tennessee. Mr. Lowrance

testified that on the evening of September 25, 2010, at approximately 9:30 p.m., he was

having a conversation with the defendant via cell phone. The witnesstestified that this phone

conversation lasted for about five minutes, during which time he and the defendant were

brainstorming ideas for marketing and performing certain HVAC work. Mr. Lowrance

testified that the defendant’s speech was fine during this conversation and that the defendant

was thinking clearly. He testified that there was nothing about his conversation with the

defendant that would lead him to believe that the defendant had been drinking. He testified

that the conversation ended abruptly when the defendant informed him that there was a

police officer behind him with his lights on. Mr. Lowrance testified that the defendant told

him that he would call him back, but he never did so. The defense rested after eliciting this

testimony.

After considering this testimony, the trial court ruled that the officer had probable

cause to arrest the defendant. The trial court reasoned that the defendant’s act of speeding

provided the officer with the probable cause necessary to pull over the defendant’s vehicle.

After commencing the traffic stop, the fact that the officer smelled alcohol provided the

officer with the reasonable suspicion necessary to continue his investigation, and this smell

combined with the defendant’s admission that he had been drinking and his sway when he

was walking was sufficient to establish probable cause for his ultimate arrest. In reaching

this decision, the trial court stated that it gave very little weight to the officer’s testimony that

the defendant had difficulty talking and exiting his vehicle.

Following the trial court’s ruling, the parties announced that they had previously

agreed to a guilty plea if the trial court denied the defendant’s motion to suppress, provided

that the plea agreement reserved a certified question concerning whether the officer had

probable cause to arrest the defendant. The trial court agreed that its ruling on this issue was

dispositive of the entire case – stating its belief that the State would have had “no other

evidence to proceed on” had the motion been granted – and consented to certify the question.

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Here the transcript of the hearing on the defendant’s suppression motion ends, but the

record reflects that the defendant pled guilty to Driving Under the Influence in violation of

Tennessee Code Annotated section 55-10-401, a Class A misdemeanor. The remaining

counts in the indictment were either declared nollo prosequi or merged with this offense.

The defendant was sentenced to eleven months and twenty-nine days, split two days in jail

with the remainder to be served on supervised probation. The defendant filed a timely notice

of appeal on June 7, 2012. Satisfied that the matter is now properly before us, we address

the certified question.

ANALYSIS

The certified question before the court is whether Officer Leverette had probable

cause to arrest the defendant. After reviewing the record in this matter, we conclude that he

did.

When reviewing a trial court’s decision concerning a motion to suppress, the losing

party bears the burden of demonstrating that the trial court’s decision was erroneous. State

v. Harts, 7 S.W.3d 78, 84 (Tenn. Crim. App. 1999). The prevailing party is entitled to the

strongest legitimate view of the evidence adduced at the suppression hearing, as well as all

reasonable inferences to be drawn from that evidence. State v. Odom, 928 S.W.2d 18, 23

(Tenn. 1996). Questions concerning the credibility of witnesses, the weigh and value to be

given their testimony, and any resolution of conflicts in the evidence are entrusted to the trial

judge as the finder of fact. Id. This court will not set aside the decision of the trial court

unless the record evidence preponderates against the court’s findings. Id. “The application

of the law to the facts found by the trial court, however, is a question of law which this Court

reviews de novo.” State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

Both the federal and state constitutions protect an individual’s right to be free from

an unlawful arrest. See U.S. CONST. AMEND. IV (“The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures, shall

not be violated.”); TENN. CONST, ART. 1, SEC. 7 (“[T]he people shall be secure in their

persons, houses, papers and possessions, from unreasonable searches and seizures.”). With

respect to an officer’s full-scale arrest of an individual, these provisions require that such an

arrest be supported by probable cause. E.g., Beck v. Ohio, 379 U.S. 89, 91 (1964) (“Whether

th[e] arrest was constitutionally valid depends . . . upon whether, at the moment the arrest

was made, the officers had probable cause to make it. . . .”). The certified question before

the court presumes a full-scale arrest. Accordingly, the only issue before the court is whether

the facts described above provided Officer Leverette with probable cause to arrest the

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defendant for D.U.I.

“To determine whether an officer had probable cause to arrest an individual, we

examine the events leading up to the arrest, and then decide ‘whether these historical facts,

viewed from the standpoint of an objectively reasonable police officer, amount to’ probable

cause.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v. United States,

517 U.S. 690, 696 (1996)). With respect to the defendant’s specific arrest for the crime of

D.U.I., “[t]he question of whether the arrest was supported by probable cause depends upon

whether at the time the arrest was made there were facts and circumstances within the

officer’s knowledge which would warrant a man of prudence and caution in believing that

the defendant had committed the offense of D.U.I.” State v. Evetts, 670 S.W.2d 640, 642

(Tenn. Crim. App. 1984). “All information in the officer’s possession, fair inferences

therefrom, and observations, including past experiences, are generally pertinent.” Id.

After reviewing the record, we are convinced that by the time of the defendant’s arrest

the officer had observed facts sufficient to justify a reasonable conclusion that the defendant

had been driving while intoxicated. Crediting the officer’s testimony and viewing it in the

light most favorable to the State, at the time the arrest was made, the arresting officer (1) had

just witnessed the defendant’s vehicle speeding; (2) smelled the obvious odor of alcohol

coming from the car; (3) observed the defendant’s eyes to be bloodshot and his speech thick;

and (4) viewed the defendant’s body swaying. In addition, the defendant had just admitted

to the officer that he had been drinking. Under these circumstances, a person of prudence

and caution would believe that the defendant had been driving his vehicle while intoxicated.

We agree with the trial court that the defendant’s admission to drinking alcohol, the obvious

odor of alcohol emanating from the defendant’s vehicle, and his act of swaying after he

exited his vehicle were of particular significance, and probably sufficient to establish

probable cause even without the other factors.

The defendant’s argument to the contrary largely consists of attacks on the police

officer’s credibility. The defendant asserts that the police officer’s testimony “defies logic

and reason” because: (1) the officer’s notations on three different documents – the arrest

warrant, the implied consent law form, and the tow-in sheet – all reflect a three-minute delay

between the defendant’s stop and his arrest, and the officer’s testimony at the suppression

hearing that he made a mistake on all three forms is “unbelievable,” (2) the officer

contradicted himself on the stand concerning whether he had personally filled out the tow-in

sheet, (3) the officer’s claim on the stand that he was on the scene for an extended period of

time because he was waiting for another officer is not supported by the record, (4) the

officer’s claim that he was gathering clues amounting to probable cause while discussing the

field sobriety tests with the defendant was not credible and conflicted with his earlier

testimony given at a preliminary hearing, (5) the officer testified that the defendant’s mental

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state was “normal” on the night of the arrest, when alcohol consumption sufficient to impair

the defendant’s driving would have deprived the defendant of a clear mind, and (6) the

officer’s testimony conflicted with the testimony of defense witness Jon Lowrance, who

testified that the defendant exhibited no signs of intoxication while on the phone with him

immediately prior to his arrest.

Many of the defendant’s points are not unreasonable. However, they suffice only to

establish conflicts in the evidence that was presented to the trial court. The trial judge as the

trier of fact was charged with the primary responsibility for evaluating the credibility of the

witnesses, and he chose to credit enough of Officer Leverette’s testimony to support a

finding of probable cause, notwithstanding these apparent inconsistencies. This decision

cannot be disturbed on appeal unless it lacks evidentiary support in the record – which it does

not.

The defendant also asserts that the trial court applied the wrong standard of law in

assessing the credibility of the officer at the suppression hearing. The defendant cites us to

a portion of the record in which the trial judge stated “at the probable cause stage, the court

has to consider that, in fact, the officer is telling the truth. . . .” Taken in isolation, this

language would appear to indicate that the trial court had indeed applied an incorrect legal

standard; there is no requirement that an officer’s testimony be presumed to be true during

a suppression hearing.

However, reviewing the record as a whole, we believe that the trial court applied the

proper legal standards and that the language cited by the defendant was merely the trial

court’s less-than-artful way of expressing its decision to credit the officer’s testimony over

the arrest warrant and accompanying documents with respect to the amount of time that

passed between the defendant’s stop and his arrest. After finding that probable cause existed

based on “the defendant’s sway, the defendant’s admission that he had been drinking and

obvious odor of alcohol,” the transcript reflects that the trial court stated:

[Defense counsel] has pointed out the discrepancy in the times between the

. . . time of the stop and the ultimate time of the arrest. That’s obviously a

very big issue. And of course if the officer made his conclusion within three

minutes, that would certainly go to either this Court’s or perhaps even the

jury’s opinion as to whether the officer had enough time to formulate his

opinions properly. But hearing the officer attempted to – has attempted to

make – to make some statements to reconcile those differences in time, in

other words, he simply put down an approximation. While that may be good

for the defense counsel for purposes of trial, at a probable cause stage, the

Court has to consider that, in fact, the officer is telling the truth, that this was

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an approximation, was not to specific time and it was simply a clerical error

in his writing the times down.

The – unless the Court clearly finds that the trooper here is being an

uncredible witness, which I don’t find, then there’s no reason for the Court

to dispute that, in fact, this was merely a misnotation of times.

Certainly, again, if that is – is shown not to be the case at the trial of

this matter, then the Court may reverse its decision here which I certainly can

do at the conclusion of the State’s proof or perhaps even the jury will find the

officer’s statements uncredible enough to put faith in them for purposes of –

for purposes of the DUI.

By these statements, the trial court appears to have been attempting to convey its

belief that, while defense counsel could raise the issue of the officer’s credibility at trial and

perhaps reach a different result, for purposes of determining probable cause (a “first review,”

as the trial court noted), the court was accepting the officer’s explanation reconciling the

differences in time because it had been shown no evidence that would lead it to believe

otherwise. We believe that the trial court’s decision in this regard was not unreasonable.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

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JOHN EVERETT WILLIAMS, JUDGE

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