Summary
In State v. Jashua Shannon Sides, No. E2000-01422-CCA-R3-CD (Tenn.Crim.App., at Knoxville, May 16, 2001), the trial court found that Sides, who was charged with driving under the influence and leaving the scene of an accident, had been unlawfully arrested and granted the defense motion to suppress.
Summary of this case from State v. WarrenOpinion
No. E2000-01422-CCA-R3-CD.
Filed May 16, 2001. Assigned on Briefs March 20, 2001
Direct Appeal from the Criminal Court for Hamilton County Nos. 225250 and 225251; Rebecca J. Stern, Judge.
Affirmed in Part; Reversed in Part; Remanded.
Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; William H. Cox III, District Attorney General; and Dean C. Ferraro, Assistant District Attorney General, for the appellant, State of Tennessee.
Mike A. Little, Chattanooga, Tennessee, for the appellee, Jashua Shannon Sides.
Joe G. Riley, J., delivered the opinion of the court, in which Alan E. Glenn, J., joined. Jerry L. Smith, J., filed a dissenting opinion.
OPINION
The defendant was indicted for DUI, second offense, and leaving the scene of an accident involving property damage. The trial court suppressed the "breath alcohol test, field sobriety test and any statements made by the Defendant," finding the defendant was unlawfully arrested. The state alleges on appeal that the trial 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 obtained after the defendant's illegal arrest is suppressed. Any evidence obtained prior to his illegal seizure is admissible relative to the charges of leaving the scene of an accident and/or DUI.
FACTS
Officer Joseph E. Kerr testified that he responded to a call on August 25, 1998, regarding an automobile accident. Upon arrival, he observed a single car with its front end in a ditch and the remainder of the vehicle blocking one lane of traffic. The driver of the vehicle was not at the scene. Volunteer firefighter Anthony Travis informed Officer Kerr 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 testified that 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 completing the accident report, he recognized a vehicle passing the scene as one that belonged to the defendant's wife. He further observed a passenger in the vehicle who matched the description of the defendant, which he recalled from the incident one week prior. The vehicle proceeded away from the accident scene, but it returned shortly thereafter. As the vehicle passed the 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 defendant, Kerr ordered the passenger out of the vehicle and told him to stand near the wrecked vehicle. Subsequently, Officer Kerr returned to the stopped vehicle and asked the driver, Ms. Sides, the name of her passenger. Ms. Sides replied that the 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 vehicle and 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 scene of an accident, the defendant was transported to the sheriff's department and submitted to a breathalyzer test. There was no testimony as to the test results, but Officer Kerr testified that he arrested the defendant for DUI after getting the breathalyzer results.
Defense counsel contended at the suppression hearing that, although the officer had probable 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 officer's presence. See Tenn. Code Ann. § 40-7-103(a)(1). The state argued that the statute expressly authorizes a warrantless 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) did not apply since the defendant was "brought back to the scene by somebody else." The trial court concluded the officer did not have the authority to arrest the defendant for leaving the scene of an accident without an arrest warrant. The trial court then ordered the suppression of "the breath alcohol test, field sobriety test and any statements made by the defendant." The state timely filed 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 evidence contained in the record preponderates against them.State v. England, 19 S.W.3d 762, 766 (Tenn. 2000). However, this Court 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 suppressed the evidence of the breathalyzer results, any field sobriety tests, and any statements made by the defendant, 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.App. 1981). However, the statute further provides:
An officer may, without a warrant, arrest a person . . . [a]t the scene of a traffic accident who is the driver of a vehicle involved in such accident when, based on personal investigation, the officer has probable cause to believe that such person has committed an offense under the provisions of title 55, chapters 8 and 10. The provisions of this subdivision shall not apply to traffic accidents in which no personal injury occurs or property damage is less than one thousand dollars ($1,000) unless the officer has probable cause to believe that the driver of such vehicle 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 "at the scene of a traffic accident;" thus, the warrantless arrest was illegal. In support 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 when drafting this statute does not include [a] situation in which the arrest occurred at the scene, but only after the driver was required to return there by law enforcement").
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 scene of an accident with property damage in violation of Tenn. Code Ann. § 55-10-102(a). Accordingly, they only addressed whether the arrest occurred at the scene of the accident.
Although we question whether Tenn. Code Ann. § 55-10-102 applies to a one-vehicle accident, it is unnecessary for us to address that issue. The state in this court is no longer relying upon the warrantless arrest for leaving the scene of an accident.
The record is silent as to whether there was any property damage 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 remarks by the trial court concerning property damage, we are unable to make this assumption. Since the burden was upon the state at the hearing to establish the applicability of the statute, we are unable to assume facts necessary to establish this essential element.
Regardless, the state in its brief in this court now concedes that the warrantless arrest for leaving the scene of an accident involving property damage was illegal. We see no need to look behind its concession. Due to this concession, we need not analyze further whether the arrest for leaving the scene of an accident was lawful, or whether an officer has 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 based on the violation of leaving the scene of an accident, it now contends on appeal that the officer had probable cause to arrest the defendant at the scene for DUI. Since an appellant cannot change theories from the trial court to the appellate court, this ordinarily waives the issue. State v. Dooley, 29 S.W.3d 542, 549 (Tenn.Crim.App. 2000).
We have carefully examined the transcript of the suppression hearing. There was only a brief reference to DUI in the state's argument when the prosecutor stated, "after arresting him on [leaving the scene of the accident] is when he received information on the driving under the influence. Based on that he had probable cause that the defendant committed driving under the influence as well." We conclude it was not the state's position at the hearing that the officer had probable cause to arrest for DUI at the scene of the accident.
Regardless of waiver, the only testimony relating to alcohol prior to the defendant's arrest at the scene was Officer Kerr's statement, "I thought I detected an odor of alcohol, not a strong odor, but an odor of alcohol." This is insufficient to establish probable cause to arrest the defendant for DUI. This testimony did sufficiently establish the right of the officer to briefly detain the defendant at the scene and administer field sobriety tests or otherwise ascertain defendant's state of sobriety. See State v. Yeargan, 958 S.W.2d 626, 633 (Tenn. 1997). However, the record is silent as to whether field sobriety tests were administered, or whether the officer had any other basis to believe the defendant was impaired. The only testimony establishing probable 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 department. This was after defendant had been illegally arrested for leaving the scene of an accident.
Therefore, the defendant was illegally detained when he was transported to the sheriff's department. The results of the breathalyzer test administered there are inadmissible. Accordingly, the record before the court does not establish probable cause for a DUI arrest at the scene of the accident, and any evidence obtained after the arrest should be suppressed.
C. Overbroad Suppression Order
The state contends that even if the arrest 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 sobriety tests and any statements made by the defendant to the police. The state now contends there was a "great deal of routine, on-the-scene investigation, including interaction between [the defendant] and Officer Kerr, which occurred prior to the arrest," and this evidence could be utilized in this prosecution.
The only issue addressed at the suppression hearing was whether the defendant was properly arrested at the scene of the accident. The state did not attempt to establish probable cause to arrest for DUI at the scene. Likewise, whether or not there was an actual violation of leaving the scene of an accident involving property damages was not litigated. See Tenn. Code Ann. § 55-10-102 (property damages in any amount may result in prosecution). The parties only litigated whether there was a valid warrantless arrest, which requires property damages of $1,000 or more. See Tenn. Code Ann. § 40-7-103(a)(6).
As stated, we question the applicability of Tenn. Code Ann. § 55-10-102 to a one-vehicle accident. However, that issue is not before us.
Only evidence obtained as a result of the illegal seizure should be suppressed. See generally State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992) (citations omitted). We conclude that the on-the-scene stop and questioning of the defendant was proper. Any evidence developed prior to the unlawful arrest need not be suppressed in the event of prosecution for leaving the scene of an accident and/or DUI.
CONCLUSION
Based upon our analysis, we affirm the judgment of the trial court to the extent of suppressing all evidence obtained subsequent to the defendant's illegal arrest at the scene of the accident. The state may utilize any evidence obtained prior to the arrest if it elects to proceed with the prosecution for leaving the scene of an accident and/or DUI.
I must dissent from the holding of the majority opinion in this case for the following reasons:
First, the State's concession and the majority's acceptance of it notwithstanding, I do not believe the record is sufficient to allow this court to adequately address the issue of the legality of the warrantless arrest of the appellee at the "scene of an accident" pursuant to Tennessee Code Annotated Section 40-7-103(a)(6). In its concession on this point the State asserts that because there was no proof addressed at the suppression hearing on the question of the value of the property damage to the appellee's vehicle, a warrantless arrest for leaving the scene of an accident pursuant to Section 40-7-103(6) cannot be sustained. It is true that Section 40-7-103(a)(6) only allows a warrantless misdemeanor arrest at accident scenes involving property damage over $1,000, unless the arrest is for DUI in which case the amount of property damage is irrelevant. However, the reason the State failed in the instant case to put on proof of the amount of property damage is the fact the State, the defense and the trial court were all apparently satisfied that property damage over $1,000 was involved.
The sole issue on which the motion to suppress was decided was whether or not the arrest of the appellee was "at the scene of an accident" since he initially fled the scene and was only arrested sometime later when he returned to his wrecked vehicle. I do not believe it fair to hold a party responsible for failing to proffer proof on an issue that was apparently settled to the satisfaction of both litigants and the trial court. See State v. Anthony E. Collier, No. M1999-01408-CCA-R3-CD, (Tenn.Crim.App., opinion filed March 16 at Nashville) (holding party will not be responsible for putting on proof where action of the trial judge, although erroneous, sustains the position of the party).
The majority concludes that, due to the State's concession, i.e., that a warrantless arrest for leaving the scene of an accident was improper, no further analysis is warranted regarding whether a citation in lieu of arrest should have been issued. I agree that no analysis of the citation issue is warranted, not because of the State's concession, but because this issue was not litigated below. Thus, we do not know why the appellant was taken into custody rather than a citation issued. It is noteworthy, however, that the citation requirement for misdemeanors has exceptions in certain cases, such as the necessity of preventing further criminal activity, the failure of the accused to provide satisfactory identification and the need to maintain public safety. Tenn. Code Ann. § 40-7-118.
I would therefore review the propriety of the appellee's arrest on the question litigated below, that is whether the warrantless arrest of the appellee occurred "at the scene of an accident."
The appellee argues that his warrantless arrest was unlawful because it was not at the scene of the accident within the meaning of Tennessee Code Annotated Section 40-7-103(a)(6), and that the section is thus inapplicable to his situation. In other words, when he returned to his wrecked vehicle there was no longer an "accident scene" within the meaning of Section 40-7-103(6). The appellee bases his argument on this Court's holding in State v. Thad Thomas Folds, CCA No. 01C01-9308-CC-00278, 1995 WL 89701 (Tenn.Crim.App. at Nashville, Mar. 3, 1995,) (holding that "the scene of the accident' as contemplated by the legislature when drafting this statute does not include [a] situation in which the arrest occurred at the scene, but only after the driver was required to return there by law enforcement"). In my opinion the appellee's reliance on Folds is misplaced for at least two reasons. First, Folds dealt with a situation where the defendant was returned by police officers to a place where they believed they could arrest him without a warrant. In the instant case the appellee returned to the accident scene of his own volition without any prompting or compulsion by police. Secondly, and more importantly, I believe Folds to be incorrectly decided. InFolds, this Court stated:
The rationale and the scope of the statute becomes clear when one considers the purposes served by the misdemeanor exception to the warrant requirement. When a police officer is called to the scene of an automobile accident, the officer usually finds a fait accompli. Even if one of the drivers were intoxicated, under the general warrant requirement, the officer could not make a warrantless arrest since the officer did not see the driver drive. Since an intoxicated driver is a danger to the driver's self and to others, the state has a genuine interest in restraining that driver until arrangements ensuring the safety of the public and the driver are made. Moreover, blood alcohol levels change over time. Chemical testing must be performed as soon as possible so that the results will reflect the driver's actual blood alcohol level at the time the accident occurred. Time spent seeking an arrest warrant would render the evidence unreliable and jeopardize public safety.
These same policy considerations do not exist at times remote from the actual occurrence. Appellee was not at the scene when the police arrived. He presented no danger to the safety of the motoring public. Approximately an hour had passed. The results of a blood alcohol test could not accurately reflect the level that existed at the time he drove off the road. The purposes for the statutory exception were no longer served by an immediate, warrantless arrest.
Id. at *5.
Thus it appears that Folds is based on a finding that Section 40-7-106(a)(6) permits immediate warrantless arrests solely for the remedial purposes of protecting public safety when a potential defendant is intoxicated, and preventing the dissipation of blood alcohol content so that chemical testing will accurately reflect the defendant's blood alcohol content at the time of the accident. I find this reasoning to be flawed. If the purposes of Section 40-7-103(a)(6) are as limited as indicated by the opinion inFolds, one wonders why the statute by its terms embraces any offense under title 55, chapters 8 and 10, including the offense of leaving the scene of an accident involving property damage. See Tenn. Code Ann. § 55-10-102(a). If, as the Folds opinion maintains, the legislature were only concerned with the public safety and evidentiary concerns attendant to DUI cases it would have limited Section 40-7-103(a)(6) to DUI cases only.
Furthermore, while I agree that police should not be able to involuntarily return drivers to the scene of an accident for the purpose of affecting a warrantless arrest, Folds is not so limited. A fair reading of Folds would lead the reader to the conclusion that the crime of leaving the scene of an accident is never subject to a warrantless arrest since by its definition the crime requires the driver to leave the accident scene. This is clearly contrary to the explicit dictates of the legislature that Section 40-7-103(a)(6) embraces Section 55-10-102(a) and allows warrantless arrests for leaving the scene of an accident if the driver can be found at the accident scene and police have probable cause to believe the driver has committed one of the offenses in title 55, chapters 8 and 10. By necessity Section 40-7-103(a)(6) can only come into play when the offense of leaving the scene of an accident involves initial flight by the driver of the vehicle involved coupled with a subsequent return to the scene. For these reasons I am of the opinion that Folds is incorrectly decided and should be overruled. I would find that the warrantless arrest of the appellee leaving the scene of an accident was proper and that all evidence recovered as the result of that arrest including evidence of DUI should be admitted against the appellee.
I also dissent from the holding of the majority that police lacked probable cause to believe the appellee was driving under the influence of an intoxicant when arrested. In this case the appellee ran his vehicle into a ditch. When he returned to the scene of the wreck, the appellee lied about his identity and initially denied driving the car. The appellee subsequently admitted he was the driver, and the officer at the scene smelled alcohol on the appellee's breath. Although the arresting officer did not charge the Appellee with DUI until after a breathalyser test was administered at the Sheriff's Department, I think there was sufficient evidence in this record for DUI to establish probable cause to arrest the appellee for DUI and that all evidence obtained as a result thereof is admissible.
For these reasons stated above I would reverse the judgment of the trial court suppressing the evidence in this case and remand this case for trial on charges of leaving the scene of an accident involving property damage and DUI.
I agree with the assertion in footnote 1 of the majority opinion that it is questionable whether Tennessee Code Annotated section 55-10-102 applies to single car accidents. However, this question was not litigated below and we need not address it for purposes of this appeal.