# FILED
September 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellant, ) C.C.A. No. 03C01-9712-CR- 0 055 2 ) vs. ) Knox County ) DAVID C. DOYAL, ) Hon. Richard Baumgartner, Ju dge ) Appellee. ) (Mot ion to Su ppress - State Appeal )

FOR THE APPE LLANT: FOR THE APPELLEE: JOHN KNOX WALKUP DONALD R. C OFFEY Attorney General & Repor ter Attorney at Law

625 S. Gay St. TODD R. KELLEY Knoxville, TN 37902 Asst. Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General SCOTT GREEN Asst. District Attor

ney General City-County Buil ding Knoxville, TN 37902 OPINION FILED:________________ REVERSED & REMA

NDED CURWOOD WITT, JUDGE1 The state brings its appeal pursuant to Tennessee Rule of Appellat e Procedure 3(c), which allows the state to appeal as of right from orders which have "the substantive effect of dis missing an indictment . . . ." Tenn. R. App. P. 3(c). We agree that the substantive effect of the suppression order is di smissal of the DUI count of the indictment. W e are not so persuaded as to the reckless driving count. How

ever, the defendant has not chall enged this court's author ity to consider the suppression ruling as regards the reckless drivi ng count, and as the supreme court has said, an ap pellate court has the authority to consider an appeal brought improperly under Rule 3(c) as a Rul e 10 appeal. See State v. Gallaher , 730 S.W.2d 622, 623 (Tenn. 1987); compare Tenn. R. App. P. 3(c) (appeal as of right by state) with Tenn. R. App. P. 10 (extraor dinary appeal by permission on original application in appellate court). 2 OPINION The State of Tennessee appeals t he tr ial court's suppressi on of evidence pertaining to a Univ ersity of Tennessee securi ty officer's off-campus, warrantless arrest of the defendant. The trial court suppressed the evi dence based upon its conclusion that the officer was with out law

fu l authority to effectuate the arrest under the circumstances of the c ase. The sole issue in this appeal is whether the tr ial court wa s correct in this conclusion. 1 Having reviewed the record, briefs, and arguments of the parties, w e find merit in the state's argument, reverse the trial court's suppression ruling, and remand this matter for furthe r proceedings.

The evidence of record consis ts entirely of

evidence introduced by the state at a suppression hearing.The defendant's vehicle struc k some street barricadeson the University of Tennessee, Knoxville campus. A maintenance worker witnessed this incident and radioed its occurrence to the UT security office dispatcher. The dis patcher relayed the information on the frequency used by university

security officers. Officer Vincent Busico was on ca mpus near the area where the barricades w ere struck, and he went t o the scene and saw

the downed barricades. The maintenance worker, driving his truck, had followed the defendant and relayed the defendant’s positi on and course to the UT dispatcher who, in turn, relayed the information to Officer Busico. Officer Busico pursued the defendant via these transmittal directions.The chase soon lef t campus. The maintenance3

employee continued following the defendant and broadcasting information, and the dispatcher continued to rela yit over the frequency

monitored by

university poli ce. Officer Busico did not have v isual contact for

most of the chase; however, he and another officer maintained pursuit b y listening to the br

oadcasts.

Officer Busico did not catch up to the defendant until they were approximately 13 miles o ff campus at the Rutledge Pike Exit of Interstate 40. He observed the defendant was driving fast and very erratically. Officer Busico had his blue lights

operati ng, and the defen dant pul led ove r fo r him afte r leaving the interstateat the Rutledge Pi ke Exit. When Officer Busico approached the defendant's vehicle, he noticed a st rong odor of alcohol. The defendant tol d the officer he had consumed about four beers. Af ter performing a field sobriety test, Officer Busico placed the defendant under ar rest for second offense DUI. Subseque ntly, t he defendant was indicted for second off ense DUI and reckless driving.

The is sue for our determination is whether Officer Busico lawfull y arrested the defendant. We hold that he did.

University

of Tennessee security officers "have all the police powers necessary to enforce all state laws as well as rules and r

egulations of theboard of regentsand the board of trustees." Tenn. Code Ann. § 49-7- 118(d) (Supp. 1997). This authority "extends to a ll facilities or property owned, leas

ed or operated by

the board of regents or

the board of trustees, includi ng any public roads or r ights-of-way which are contiguous

to or within the peri meter of such facilities or pr operty." Tenn. Code Ann. § 49-7-118(d) (Supp. 1997). The powers of law enforceme nt officers in Tennessee include the authority to effect an arrest of a suspect who has committed
a misdemeanor

in the officer's presence. See Tenn. Code Ann. § 40-7-103(a)(1)2 The state does not contend that the defendant committed a felony on

campus.

3 The defendant was later indicted for reckless drivin g. The record does not reflect whether this c harge is premised upon the ev ents which are alleg ed to have occurred on campus, on the interstate, or both. 4 (1997). On occasion, this court has interpreted the officer' s "p resence" broadly, finding it may exist w

here the arresting officer di d not witness the crime but has received information from another law enforcement official w ho was witness to the
m isdemeanor. See State v. Teri L. Hopson , No. 03C01-9601-CC-00007, sli p op . at 5-6 (Tenn. Crim. App., Knox ville, July 8, 1997); State v. Maxie Lewis Hunter , No. 89-101-III (Tenn. Crim. App., Nashville, Oct. 13, 1989); State v. Bryant , 678 S.W.2d 480, 483 (Tenn. Cr

im. App. 1984). But see Williams v. State , 506 S.W.2d 193, 197 (Tenn. Crim. App. 1973) ("[A]n o ffense is not committed in the presence of an officer when its commission is communicated to him by another.") (citations omitted).

We begin by noting that there is noquestion that Officer Busico was well beyond the bounds of his juris dictional confines of the UT campus and contiguo us or pe ripheral public roads or rights-of-way when he arrested the defen dant. Thus, in order for the arrest to be valid, it must fit within an exce ptio n to the usua l territorial limits placed on the university security officer's author ity by virtue of Code section 49-7-118(d) (Supp. 1997).

First, our review of the facts p res en ted at the suppression hearing leads us to conc lude that the defendant's alleged ac tions on campus amount, at most, to a misdemeanor. 2 Unfortu nately , neithe r party inquir ed of Off icer Busic o regarding his purpose in chasing the defendant off campus. We question whether he planned to arrest the defendant for anything that happened on campus because
once he apprehended thedefendant, he only cited the defendant for DUI. 3 Perhaps5

Officer Busico was merely going to investigate the alleged incident on campus, hoping tosee the defendant's vehicle and license tag so that he mi ght determine his identity and obtain an arrest warrant. Perhaps the officer planned to talkto the defendant to see whether he admitted st riking the barricades . Simply put, we do not know.

Because the record does not reveal that Officer

Busico was

in pursuit of the defendant in order to ar rest him for a misdemeanor wi tnessed by the university

maintenance employee, it is unnecessary for us to consider whether the Hopson/Hunter/Bryant

expansion of an officer's "presenc e" should be applied when the person who witnessed the misdemeanor is not also a law enforcement of ficer. Without evidence of Officer Busico's i ntent to arrest the defendant pursuant to the on-campus incident, the Hopson/Hunter/Bryant line of authority prov

ides no basis for the arrest.

This, however, does not terminate our inquiry. In Tennessee, private citizens have the autho rity to effectuate warrantless arrests for misdemeano rs committed in their presence. Tenn. Code Ann. § 40-7-109(a)(1) (1997).On occasion, courts have interpre ted the " citizen's arrest" st atute to cure def ective
war rantle ss arrests by law enforcement officers acting outside their jurisdiction. See, e.g. , United States v. Layne , 6 F.3d 396 (6th Cir. 1993) (appl ying Tennessee law); State v. Johnson , 661 S.W.2d 854 (Tenn. 1983).

We find the case at bar controlled by our previous decisi on in State
v. Horace Durham , No. 01C01-95 03-CC-00 056 (Ten n. Crim. A pp., Nash ville, Nov. 16, 1995). I n that case, an undercover police officer observed the obviously intoxicated defendant leave a club and begi n driving a vehi cle. Horace Durham , slip op. at 2. The undercover officer began foll owing the defendant and called the city6

police department, which dispatc hed an officer. Horace Durham , slip op. at 2. The undercover

officer stayed on the phone with the police department while following the defendant. Horace Durham , slip op. at 2. The city polic e o fficer eventually caughtup to the defendant and observed his erra tic driving; howev er, the officer
was beyond his jurisdictional territory w hen he first observed and stop pe d the defendant. Horace Durham , slip o p. at 2. The city police offi c er was on duty, in uniform, driving a patrol car, and had the car's blue l ights op erating when he stopped the defendant. Horace D urham , slip op. at 3. The officer ultimately arrested the defendant for DUI. Horace Durham , slip op. at 2. We determined that the arrest was a law

ful citizen's arrest,finding that the officer had probable cause forthe initial stop and that "a polic e officer does not give up the right to act as a privatecitizen when he

is off duty or out of

his jurisdiction." Horace Durham , slip op. at 4 (citation omitted). Fu rther, we rationali zed that unde r the circumstances presented in that case, "it is good public policy to encourage a police officer to s top
an apparently intoxic

ated driver who is

endangering both himself an d the public." Horace Durham , slip op. at 5.

The case at bar is like Horace Durham . Whatever Officer B usi co's purpose was in pursuing the defendant, by the time he stopped the defendant he clearlyhad probable cause to do so. During the purs uit, Officer Busico had observed thedefendant driving fast and very erratically. He had seen "broken-up and busted-up ba rrica des" shortly beforehand, and he had information that the defendan t was the one who had dri ven into the barricades.Although the recor d does not support a

conclusion that Officer Busico was vested with official authority to arrest the defendant

at this time, he certainly had the authority to effect a citizen's arrest for DUI based upon his own observations. In accor d with o ur holdin g in Horac e Durham , such a result promotes the public policy of allowing out-o f
jurisdiction law

enforcement officials to remove suspected drunken drivers from the7

road before their irresponsibl e actions result in loss of life, permanent injury and/or property damage to themselves or innocent third parties.

Accordingly, w

e reverse the

trial court's order suppressing evidence obtained as a result of the defendant's arrest. W e remand this matter to the tri al court for further proceedings.

_______________________________ CURWOOD WITT, JUDGE
CONCUR:

_____________________________ PAUL G. SUMMERS, JUD GE

_____________________________ JERRY L. SMITH, JUD GE