        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  February 1, 2005 Session


                STATE OF TENNESSEE v. JERRY GLEN YATES

                    Direct Appeal from the Circuit Court for Obion County
                           No. 4-82 William B. Acree, Jr., Judge



                    No. W2004-01805-CCA-R3-CD - Filed March 1, 2005



The Appellant, Jerry Yates, appeals the denial by the trial court of a motion to suppress all
evidence in a prosecution for driving under the influence, alleging an illegal warrantless
misdemeanor arrest because he left the scene of the accident. We affirm the trial court’s denial
of the motion.

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

JOE H. WALKER, III SP .J., delivered the opinion of the court, in which JOHN EVERETT
WIL LIAMS, J. and ALAN E. GLENN , JJ., joined.

Timothy Boxx, Dyersburg, Tennessee, for the appellant, Jerry GlenYates.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; Allen Strawbridge, Assistant District Attorney
General; and James Cannon, Assistant District Attorney General, for the Appellee, State of
Tennessee.


                                           OPINION

                                     Factual Background

       On October 25, 2003, about 3:30 in the afternoon, Appellant was driving on a rural road
in Obion County, and ran off the road into a ditch full of water. The vehicle ended on its side in
the water. Appellant was cold and wet and walked down the road approximately 150 yards to
the Blue Bank Marina, to get warm and dry and call for a wrecker. He stayed at the Marina
about thirty minutes waiting for a wrecker, when Sergeant Alford came in and asked him if he
was okay, and if he was the person driving the vehicle that was in the ditch. Appellant replied he
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was, and according to Appellant the officer said, “Well, you need to come back to the scene with
me.” Appellant testified he felt he “needed to go back up there,” and rode with the officer to the
ditch containing his vehicle.

       Sergeant Alford testified that he went to the Blue Bank Marina to see if the driver was
okay. Appellant told him he was all right and did not need medical attention. The officer
informed Appellant that the highway patrol was in route to investigate, and asked him if he
needed a ride back to the scene in a warm car. Appellant stated yes, and they rode back and
waited on the trooper.

        Appellant waited in the officer’s car until the Trooper Butler pulled up and got him out of
the patrol car. Trooper Butler testified that he was dispatched to the scene at 4:04 p.m. The
trooper could smell the odor of alcohol on Appellant, and had him perform field sobriety tasks.
Appellant was unsteady on his feet, and performed the tasks poorly. He was arrested by the
trooper and transported for a blood-alcohol test.

                                       Trial Court Finding

        The trial judge accredited the testimony of the officer, and found that Appellant
voluntarily accepted the offer of the officer to ride back to the scene of the accident in a warm
vehicle, and that Appellant was not placed under arrest at that point. Appellant was placed under
arrest at the scene by the trooper after observing signs of alcohol use, and poor performance by
Appellant on field sobriety tasks.

       Appellant entered a plea of guilty to driving under the influence, reserving a certified
question of law, whether the trial court erred by not suppressing all evidence after he was
transported by the officer from the Marina back to the ditch containing his vehicle.


                                            Analysis

        We review the factual determinations by the trial court according to the standard set forth
in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Under this standard, "a trial court's findings of
fact in a suppression hearing will be upheld unless the evidence preponderates otherwise."
Questions about witness credibility and "resolution of conflicts in the evidence are matters
entrusted to the trial judge." Our review of a trial court's application of law to the facts, however,
is conducted under a de novo standard of review. State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001), cert. denied, 534 U.S. 948, 122 S. Ct. 341, 151 L. Ed. 2d 258 (2001).

       An officer may not make a warrantless arrest for a misdemeanor offense unless such
offense is committed in the officer's presence. See Tenn. Code Ann. § 40-7-103(a)(1); State v.
Duer, 616 S.W.2d 614, 615 (Tenn. Crim. App. 1981). A limited exception to the "in the
presence" rule exists for certain circumstances in which an officer suspects an individual of DUI.

        Tennessee Code Annotated section 40-7-103, which governs warrantless arrests by police
officers, provides in pertinent part as follows:
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       An officer may, without a warrant, arrest a person:
       (1) For a public offense committed or a breach of peace threatened in the officer's
presence; [or]
       ***
       (6) At 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.
       Section 55-10-401 describes the offense of driving under the influence.

       Appellant maintains that he was taken into custody by the officer at the Marina without
probable cause and forced to return to the scene. Appellant relies on the opinion of State v.
Folds, 1995 Tenn. Crim. App. LEXIS 167, No. 01C01-9308-CC-00278 (Tenn. Crim. App., at
Nashville, Mar. 3, 1995).

         In Folds, police had found no one at the scene of a single-vehicle accident. After
determining that the defendant was the owner of the wrecked vehicle, one of the officers drove
to the defendant's residence. The defendant explained that he and his wife were attempting to
locate a towing service. While the defendant claimed that the officer required his return to the
accident scene, the officer contended that he had merely "requested" his accompaniment.
Approximately an hour had passed since the accident. At the scene, the defendant admitted to
officers, who noticed a strong odor of alcohol, that he had been drinking. He failed two field
sobriety tests. Officers then arrested the defendant, who consented to a chemical blood alcohol
test. The trial court granted the defendant's motion to suppress his statements to police and the
results of his blood alcohol test, holding that the arrest was not permitted by Tennessee Code
Annotated section 40-7- 103(a)(6) , which specifies that an officer may arrest without a warrant
when the officer has probable cause to believe that a driver has committed an offense under title
55, chapters 8 and 10 , and the driver is "at the scene of a traffic accident." On appeal, this court
agreed that the "scene of the accident," as used in the statute, "does not include [the] situation in
which . . . the driver was required to return [to the scene] by law enforcement." 1995 Tenn.
Crim. App. LEXIS 167 at *11.

        In Folds, the defendant was at home; while in this case Appellant was near the accident
scene using the telephone at a public place. In this case the trial court accredited the testimony
of the officer, finding that he offered “to carry Mr. Yates back to the scene in a warm vehicle,
that the defendant, Mr. Yates, accepted that invitation.” The trial court noted that Appellant’s
car was being pulled from the ditch, and Appellant would have an interest in going back to his
vehicle. This was not a situation where the driver was required to return from his home to the
scene by law enforcement.

       The officer’s subjective and unarticulated intent is not determinative on whether a
suspect has been arrested. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). The question is
how a reasonable person would have understood the situation. The trial judge concluded under
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the general circumstance of this case that Appellant was not taken into custody at the Marina.
The Appellant testified he walked the short distance to the Marina because he was wet and cold,
and he needed to call a wrecker to pull his car out of the ditch full of water. Sergeant Alford
testified he was not there to conduct an investigation, but told Appellant that the highway patrol
was in route to investigate the wreck. Sergeant Alford offered Appellant a ride because he could
see that Appellant was “already cold, you know, from being in the water” and thought he might
want a ride in a warm car “instead of having to walk in the rain and cold weather.” A trial judge
who sees and hears the witnesses is granted wide latitude in determining credibility of the
witnesses.

        The trial court found that “there was no arrest made by Sergeant Alford, that the arrest
was made by Trooper Butler after observing certain signs of alcohol on the part of Mr. Yates,
and also after administering three filed sobriety tests, which he failed.”

         We find that the evidence does not preponderate against the finding of the trial court
that Appellant was not required to return to the scene by law enforcement.

        The state further submits that Appellant never left the “scene of the accident.” Because
the defendant was in close proximity to the accident scene almost immediately after its
occurrence, the rationale of Folds was not applicable. Appellant was at a Marina a short
distance away from his wrecked vehicle using a telephone. The state submits that the analysis in
State v. Butler, 108 S.W.3d 845 (Tenn. 2003), would indicate that Appellant was still at the
“scene of the accident” within the meaning of the statute. In Butler, our supreme court upheld a
conviction for driving under the influence where the defendant was 100 yards away from his
motorcycle when confronted by the officer. In the instant case, Appellant was approximately
150 yards from his wrecked vehicle when Sergeant Alford spoke with him. The state contends
that this close proximity would mean Appellant was still at the scene, so it would not matter if
Sergeant Alford did arrest Appellant.

       We concur with the trial court finding that Appellant accepted a ride back to his vehicle
which was being towed from the ditch. He was not required to return to the scene by law
enforcement. He was at the scene of the accident when Trooper Butler arrived.

       The judgment of the trial court is affirmed.

                                                      _______________________________
                                                      JOE H. WALKER, III, SP.J.




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