            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE

                         JANUARY 1997 SESSION
                                                      FILED
                                                         July 8, 1997

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,         *    C.C.A. # 03C01-9601-CC-00007

      Appellee,             *    WASHINGTON COUNTY

VS.                         *    Honorable Arden L. Hill, Judge

TERI L. HOPSON,             *    (DUI Second Offense)

      Appellant.            *


For Appellant:                   For Appellee:

James T. Bowman                  Charles W. Burson
Attorney at Law                  Attorney General & Reporter
128 East Market Street
Johnson City, TN 37604           Glenn Erikson
                                 Assistant Attorney General
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 Joe Crumley
                                 Assistant District Attorney General
                                 P.O. Box 38
                                 Jonesborough, TN 37659




OPINION FILED: _____________________




AFFIRMED




GARY R. WADE, JUDGE
                                                OPINION

                 The defendant, Teri L. Hopson,1 was convicted after a bench trial of

DUI second offense. The trial court sentenced her to eleven months, twenty-nine

days; the defendant is to serve forty-five days in jail at 100 percent with the

possibility for work release. Her driver's license was revoked for two years. Proof

on a defense motion to suppress evidence was presented during the course of the

bench trial; a ruling that the arrest was lawful was made at the conclusion of the trial.



                 The sole issue on appeal is whether the defendant was lawfully

arrested for a misdemeanor offense, where the arresting officer did not witness the

commission of the offense. Because we believe the arrest was proper, the

judgment of the trial court is affirmed.



                 On September 1, 1994, Officer Larry Robbins of the Johnson City

Police Department was working off duty as a security guard at a Krystal Restaurant

when he observed the defendant drive her vehicle into the parking lot. The officer

described the defendant's driving as follows:

                 Miss Hopson was turning off of Market Street onto ...
                 Franklin. She was in the left hand lane, there's two turn
                 lanes. Miss Hopson's vehicle cut across from the left
                 hand lane into the right hand lane in front of another
                 vehicle and that's the one that blew the horn at her. And
                 then she turned into the [K]rystal's parking lot. As she
                 turned in she [ran] over the curb ....



                 Officer Robbins notified the dispatcher to direct an on-duty officer to

investigate a possible drunk driver. Meanwhile, the defendant had made a call on a

pay telephone and began to walk across the parking lot. Officer Robbins, who was



        1
           W hile some pleadings refer to the defenda nt as "Terry L. Hopso n," it is the policy of this court
to refe r to the defe nda nt as her n am e ap pea rs on the indictm ent.

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in uniform, then asked her to wait for the on-duty officer. The officer acknowledged

that the defendant, due to her impairment, was not free to leave in her vehicle.

Officer Robbins, who had been trained in DUI enforcement and the use of field

sobriety tests, waited at the scene until Officer Lori Cox was able to administer the

tests. He witnessed the defendant's poor performance.



              On cross-examination, Officer Robbins testified that he had not

arrested the defendant and had not physically restrained her in any fashion. He

stated that the defendant, after concluding her telephone call, walked towards the

restaurant rather than towards her car; thus, he concluded that the defendant did

not intend to drive away at that moment. On redirect, however, Officer Robbins

reiterated that he would not have allowed the defendant to leave in her condition.



              Officer Lori Cox testified that upon her arrival at the scene, Officer

Robbins informed her that he had seen the defendant drive in a reckless manner.

Officer Cox, who acknowledged that she never saw the defendant drive her car,

smelled alcohol on her breath. The defendant admitted that she had been drinking

and informed Officer Cox that she had stopped to use a phone. When the

defendant performed poorly on the field tests, Officer Cox took her to the jail. While

there, the defendant failed additional field tests.



              The trial court ruled that the arrest had been lawful and found the

defendant guilty of DUI second offense:

              I don't think that Officer Cox saw enough to arrest the
              defendant, because she was not in control of the
              automobile, and while she was on a public parking place
              that met the criteria of one of the elements, and that in
              my opinion she was under the influence of an intoxicant
              because of her failure to pass the sobriety tests. But she
              did not commit driving under the influence of an
              intoxicant in the presence of Miss Cox. Now, in my

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              opinion she did do actions before Officer Robbins, and
              then he detained her, and then Officer Cox investigated
              and determined as to exact what--what she should be
              charged with. And here we have an officer in uniform,
              whether he's a private citizen or an officer that's detained
              her and turned her over to another officer is almost
              immaterial. I don't think there's much difference in a
              private citizen and an officer that's off duty except in the
              eyes of the arrestee. All right. I guess I have made my
              decision. I'm of the opinion that Officer Robbins
              detained, which in my opinion was a type of arrest. ...
              Officer Cox just transported her to the jail. But it was
              Officer Robbins['] case that he saw it and detained her.
              And I'm of the opinion that that's enough.



              The defendant contends that her arrest violated Tenn. Code Ann. §

40-7-103(a)(1), which provides that "[a]n officer may, without a warrant, arrest a

person [f]or a public offense committed ... in his presence." The defendant argues

that because she did not commit the offense in the presence of Officer Cox, the

officer had no authority to arrest her and did not have a reasonable factual basis for

detaining her. We disagree.



              In some older cases, our courts have strictly and literally applied the

statutory limitation on warrantless arrests. In St. John v. State, 491 S.W.2d 629

(Tenn. Crim. App. 1972), for example, an off-duty police officer in Hernando,

Mississippi, observed a vehicle driving in a reckless fashion towards Memphis,

Tennessee. Id. at 630. The Mississippi officer notified Memphis authorities, who

subsequently arrested the defendant. Id. The arresting officer testified "that he did

not observe any unlawful act in his presence [and] ... [t]hat the basis for the arrest

was the information he had received from the Mississippi officer." Id. at 631. Our

court found that the arrest was illegal. Id. See also Williams v. State, 506 S.W.2d

193 (Tenn. Crim. App. 1973).



              In more recent cases, however, courts have held that in certain limited

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circumstances an officer may make an arrest for a misdemeanor even though it is

not committed in his presence. See State v. Bryant, 678 S.W.2d 480 (Tenn. Crim.

App. 1984). In Bryant, a police officer observed a car traveling 110 miles per hour.

Id. at 482. After unsuccessfully attempting to stop the car, the officer asked for

assistance. Id. Moments later, a second officer, who had heard the dispatch,

detained a car that matched the description given. The first officer then arrived at

the scene and made the arrest. Id. The second officer "observed no unlawful

action ... [and] the stop was based entirely on [the first officer's] transmission." Id.

Our court ruled as follows:

                      We note initially that this limitation on warrantless
              arrests for misdemeanors is not constitutionally required.
              Further, in states that retain the rule, it is frequently held
              that in light of the increased speed with which offenders
              may flee from a witnessing officer and modern
              communications techniques available to the police, an
              offense may be said to have been committed in the
              presence of the arresting officer if he is in communication
              with and is assisting the witnessing officer.

Id. at 483. In determining that the initial detention was lawful, this court ruled that

the prohibition against arrests for misdemeanors not committed in the officer's

presence could not be read to deprive the witnessing officer of the "assistance of a

fellow officer when that assistance is requested in a reliable manner." Id.



              In State v. Maxie Lewis Hunter, No. 89-101-III (Tenn. Crim. App., at

Nashville, Oct. 13, 1989), an officer observed an intoxicated driver stop at a gas

station. Id., slip op. at 2. Because the witnessing officer did not have "jurisdictional

authority," he called a second officer who arrived about five minutes later. Id., slip

op. at 2-3. The arrest was made in the presence of the witnessing officer. This

court, noting that the purpose of the statute is to "prevent groundless misdemeanor

arrests of citizens based on hearsay or speculation," upheld the arrest. Id., slip op.

at 4. "[A]ny harm that might occur from a warrantless [arrest] is cured when a police


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officer actually witnesses the offense and then communicates what he has

observed, on the scene and after a very short span of time, to an officer authorized

to make the arrest in the particular geographical jurisdiction." Id., slip op. at 4-5.

We cannot distinguish the ruling in Hunter from the facts in this case.



              The defendant also contends that Officer Cox did not have a sufficient

factual basis for detaining her. She bases this argument on our ruling in State v.

James Chester Cobb, Sr., No. 01C01-9011-CC-00308 (Tenn. Crim. App., at

Nashville, May 7, 1991). In Cobb, this court held the police officer did not have a

sufficient factual basis for conducting an investigatory stop where the only

information the officer had was based on a police dispatch which was based on an

anonymous informant. Id., slip op. at 1-2. Because there was no "indication ...

whether the informant was 'credible' or whether the information given was reliable,"

our court found the stop unlawful. Id. Here, however, the informant was a police

officer whose identity and credibility were known by the arresting 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 able to verify much of the information provided.



              Accordingly, the judgment is affirmed.



                                           __________________________________
                                           Gary R. Wade, Judge

CONCUR:



_______________________________
William M. Barker, Judge




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_________________________________
Curwood Witt, Judge




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