         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  September 14, 2004 Session

             STATE OF TENNESSEE v. JIMMY ALBERT WARREN

               Interlocutory Appeal from the Circuit Court for Tipton County
                            No. 4697 Joseph H. Walker, Judge



                  No. W2004-00107-CCA-R9-CD - Filed December 15, 2004


The defendant, Jimmy Albert Warren, indicted for second offense driving under the influence and
DUI per se, filed a pre-trial motion to suppress all evidence. The trial court granted the motion in
part and denied it in part, holding that the field sobriety tests and the statements made by the
defendant prior to his arrest were admissible, but that the blood alcohol content test results were not.
In this interlocutory appeal initiated by the state, each party claims that the trial court erred. The
judgment of the trial court is affirmed.

                  Tenn. R. App. P. 9; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN
E. GLENN , JJ., joined.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General; and
Walt Freeland and Colin Campbell, Assistant District Attorneys General, for the appellant, State of
Tennessee.

Kim E. Linville, Covington, Tennessee, for the appellee, Jimmy Albert Warren.

                                              OPINION

        As the result of a February 10, 2003, automobile accident, the defendant was charged with
driving under the influence, second offense, and DUI per se. See Tenn. Code Ann. § 55-10-
401(a)(1) – (2). Prior to trial, the defendant moved to dismiss the charges on the ground that his
warrantless arrest was illegal. See Tenn. Code Ann. § 40-7-103 (governing warrantless arrests by
police officers). He also contended that his pre-arrest statements and performance on field sobriety
tests should be suppressed because he was seized and detained in violation of the state and federal
constitutions.

         At the hearing on the defendant’s motion, Tipton County Sheriff’s Deputy Michael Downing
testified that at approximately 11:00 p.m. on February 10, 2003, he was dispatched to a single-
vehicle accident at the intersection of Quito-Drummonds Road and Quito Memorial Road in
Millington. When he arrived, he observed that a pick-up truck, which was registered to the
defendant, “had rolled off a steep shoulder of the road.” A tow truck was already present. Because
the defendant, whose residence was approximately 200 yards away, was not at the scene, Officer
Downing asked a relative of the defendant to return him to the scene to help complete the accident
report. When the defendant arrived and acknowledged that he had been driving the truck at the time
of the accident, Deputy Downing noticed the smell of alcohol and administered two field sobriety
tests: the finger-to-nose and counting backwards tests. The defendant performed poorly and was
taken into custody. According to the officer, there were no alcoholic beverages in the truck and the
defendant denied having consumed any alcoholic beverages at his residence after the accident. A
blood test indicated a blood alcohol content of .23. During cross-examination, the deputy
acknowledged that he had failed to advise the defendant of his Miranda rights at any time during the
evening.

        Scott Warren, the defendant’s nephew, testified that sometime between 9:30 and 10:00 p.m.
that evening, his father telephoned, telling him that the defendant had been involved in an accident
“at the end of the driveway.” He recalled that he drove the defendant, who claimed to be
experiencing pain related to an earlier hernia surgery, the two hundred yards to his residence.
Warren estimated that an hour and a half had passed before Deputy Downing arrived on the scene.
According to Warren, the deputy then said, “I need to talk to him. Can you go get him? Or I can go
up there.” It was his opinion that the defendant was not impaired either immediately after the
accident or at the time he returned to the scene.

       The trial court granted the defendant’s motion to exclude the results of the blood alcohol test
but ordered that the defendant’s pre-arrest statements and the field sobriety tests were admissible.
The order provided, in part, as follows:

               The [c]ourt finds that [State v. Thad Thomas Folds, No. 01C01-9308-CC-
       00278 (Tenn. Crim. App., at Nashville, Mar. 3, 1995)] is controlling of the issues
       herein with regard to the blood test. The defendant was at his home for some time
       before the officer arrived at the scene and requested that a family member request
       that the defendant return to the scene. The family member went to the home and the
       defendant voluntarily returned to the scene and attempted to perform field sobriety
       tests. He was then arrested. That arrest violates the provisions of T.C.A. 40-7-103.
               The motion is granted with regard to the result of the blood alcohol test which
       was taken after the defendant’s arrest, and for any statement of the defendant after the
       arrest.

        Initially, the state asserts that the trial court erred by suppressing the defendant’s blood
alcohol content, claiming that because the defendant was arrested at the scene of the accident, a
warrant was not necessary. The standard of review applicable to suppression issues is well
established. When the trial court makes a finding of facts at the conclusion of a suppression hearing,
the facts are accorded the weight of a jury verdict. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn.


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1994). The trial court’s findings are binding upon this court unless the evidence in the record
preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Stephenson,
878 S.W.2d at 544; State v. Goforth, 678 S.W.2d 477, 479 (Tenn. Crim. App. 1984). Questions of
credibility of witnesses, the weight and value of the evidence and resolution of conflicts in evidence
are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is
entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well
as all reasonable and legitimate inferences that may be drawn from the evidence. Odom, 928 S.W.2d
at 23.

        Generally, a warrantless arrest for a misdemeanor not committed in an officer’s presence
violates Tennessee law. State v. Duer, 616 S.W.2d 614, 615 (Tenn. Crim. App. 1981). Tennessee
Code Annotated section 40-7-103, however, which governs warrantless arrests by police officers,
provides in pertinent part as follows:

                An officer may, without a warrant, arrest a person:
                                           *      *       *
                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[.]

Tenn. Code Ann. § 40-7-103(a)(6); see also Tenn. Code Ann. § 40-7-103(a)(8) (allowing warrantless
arrest of driver involved in traffic accident “up to four (4) hours after such driver has been
transported to a health care facility, if emergency medical treatment . . . is required” and officer has
probable cause to believe that driver has violated Code section 55-10-401).

        In State v. Thad Thomas Folds, the opinion relied upon by the trial court, police had found
no one at the scene of a single-vehicle accident. After determining that Folds was the owner of the
wrecked vehicle, one of the officers drove to his residence, arriving approximately forty-five minutes
after the accident. Folds explained that he and his wife were attempting to locate a towing service.
While Folds claimed that the officer required him to return to the accident scene, the officer testified
that he had merely “requested” his accompaniment. After returning to the scene, Folds, who smelled
of alcohol, admitted that he had been drinking and had failed two field sobriety tests. He was
arrested and agreed to a blood alcohol test. The trial court in Folds granted Folds’s motion to
suppress both his statement 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). 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.” Slip op. at 8.




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        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. At the hearing, the arresting officer testified that he was dispatched to a single-
vehicle automobile accident. The driver of the vehicle was not at the scene. The officer recognized
the vehicle as belonging to Sides and later saw Sides’s wife drive by the accident scene in her
vehicle. Sides was a passenger in her car. When the officer stopped the vehicle, Sides initially
denied involvement in the accident. Eventually, he admitted that he was the driver. The trial court
concluded that because Sides voluntarily returned to the scene with his wife, Tennessee Code
Annotated section 40-7-103(a)(6) was inapplicable. On appeal, a majority of this court accepted the
state’s concession that Sides’s warrantless arrest for leaving the scene of an accident was not
permitted by the statute and concluded that the officer did not have probable cause to arrest for
driving under the influence. Cf. State v. Reynaldo Quintanilla, No. M2002-02440-CCA-R3-CD
(Tenn. Crim. App., at Nashville, May 16, 2003) (holding that although warrantless arrest for DUI
would not have been permissible under rationale of Folds and Sides where defendant was found
walking along public roadway in intoxicated condition and returned to accident scene by police,
which was a relatively short distance away; the arrest was nevertheless lawful where officers had
probable cause to believe that the defendant was committing the offense of public intoxication,
see Tenn. Code Ann. § 40-7-103(1)).

        In our view, the holdings in Folds and Sides are controlling precedent. Like Folds, the
defendant had returned to his residence after the accident. He had been there for over one and one-
half hours before Deputy Downing arrived, asking that he return to the scene. As in Folds, the
defendant was not “[a]t the scene of a traffic accident” within the meaning of Tennessee Code
Annotated section 40-7-103(a)(6). Although the state attempts to distinguish Folds by arguing that
this defendant returned to the scene voluntarily, we do not find this determinative. In Folds, this
court ruled that the case turned on the basic rationale of section 40-7-103(a)(6):

               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.

Folds, slip op. at 8-9. There was a persuasive dissenting opinion in Sides criticizing the holding in
Folds. See Sides, slip op. at 2-3 (Smith, J., dissenting). Nevertheless, the defendant’s wrongful
warrantless arrest requires exclusion of the blood alcohol test results.

        Next, the defendant, arguing that he did not receive Miranda warnings, asserts that the trial
court erred by failing to exclude his pre-arrest statements to police and his performance on the field
sobriety tests. In denying the motion to suppress, the trial court made the following observations:



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                After the defendant returned to the scene, the officer could smell the odor of
        alcohol on the defendant. This was sufficient to establish the right of the officer to
        briefly question the defendant and administer field sobriety tests [or] otherwise
        ascertain the defendant’s state of sobriety.
                There is no requirement of a Miranda warning before requesting a field
        sobriety test or speaking to someone suspected of driving under the influence. The
        U.S. Supreme Court has held that questioning pursuant to a routine traffic stop does
        not implicate the protections required by Miranda. . . . In such a situation, an officer
        is permitted to “ask a detainee a moderate number of questions to establish his
        identity and try to obtain information confirming or dispelling the officer’s
        suspicions.” . . . .
        [I]n the case at bar, the [d]efendant’s statement about drinking was not made while
        he was in custody. In fact, no traffic stop was initiated, the defendant had returned
        to the scene with his nephew.
                The length of time between the accident and the field sobriety test, and other
        factors such as injury to the defendant, go to the weight to be given to the tests, not
        the admissibility.


        The Fifth Amendment to the United States Constitution provides that “no person . . . shall
be compelled in any criminal case to be a witness against himself .” U.S. Const. amend. V; see also
Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that the Fifth Amendment protection against
compulsory self-incrimination is applicable to the states through the Fourteenth Amendment).
Article I, section 9 of the Tennessee Constitution provides that “in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. “The
significant difference between these two provisions is that the test of voluntariness for confessions
under Article I, § 9 is broader and more protective of individual rights than the test of voluntariness
under the Fifth Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992).

         Generally, one must affirmatively invoke these constitutional protections. An exception
arises, however, when a government agent makes a custodial interrogation. Statements made during
the course of a custodial police interrogation are inadmissible at trial unless the state establishes that
the defendant was advised of his right to remain silent and his right to counsel and that the defendant
then waived those rights. Miranda v. Arizona, 384 U.S. 436, 471-75 (1966); see also Dickerson v.
United States, 530 U.S. 428, 444 (2000); Stansbury v. California, 511 U.S. 318, 322 (1994). A
defendant’s rights to counsel and against self-incrimination may be waived as long as the waiver is
made voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at 478; State v. Middlebrooks,
840 S.W.2d 317, 326 (Tenn. 1992). In order to effect a waiver, the accused must be adequately
apprised of his right to remain silent and the consequence of deciding to abandon the right.
Stephenson, 878 S.W.2d at 544-45. In determining whether a confession was voluntary and
knowing, the totality of the circumstances must be examined. State v. Bush, 942 S.W.2d 489, 500
(Tenn. 1997). If the “greater weight” of the evidence supports the court's ruling, it will be upheld.



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Id. This court must conduct a de novo review of the trial court’s application of law to fact. State v.
Bridges, 963 S.W.2d 487 (Tenn. 1997); State v. Yeargan, 958 S.W.2d 626 (Tenn. 1997).

        In Miranda, the United States Supreme Court limited its holding to a “custodial
interrogation.” Miranda, 384 U.S. at 478-79. The Court defined the phrase “custodial interrogation”
as “questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” Id. at 444. A person is “in
custody” within the meaning of Miranda if there has been “a ‘formal arrest or restraint on freedom
of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S.
1121,1125 (1983) (citation omitted). The Court has refused to extend the holding in Miranda to
non-custodial interrogations. See Oregon v. Mathiason, 429 U.S. 492 (1977) (holding that an
accused’s confession was admissible because there was no indication that the questioning took place
in a context where his freedom to depart was restricted in any way); see also Beheler, 463 U.S. at
1124-25 (noting that the ultimate inquiry is simply whether there is a “formal arrest or restraint on
freedom of movement” of the degree associated with a formal arrest). In determining whether a
reasonable person would consider himself or herself in custody, our supreme court considers a
variety of factors, including the following:

       [T]he time and location of the interrogation; the duration and character of the
       questioning; the officer’s tone of voice and general demeanor; the suspect’s method
       of transportation to the place of questioning; the number of police officers present;
       any limitation on movement or other form of restraint imposed on the suspect during
       the interrogation; any interactions between the officer and the suspect, including the
       words spoken by the officer to the suspect, and the suspect's verbal or nonverbal
       responses; the extent to which the suspect is confronted with the law enforcement
       officer's suspicions of guilt or evidence of guilt; and finally, the extent to which the
       suspect is made aware that he or she is free to refrain from answering questions or
       to end the interview at will.

State v. Walton, 41 S.W.3d 75, 82-83 (Tenn. 2001) (quoting State v. Anderson, 937 S.W.2d 851,
855 (Tenn. 1996)).

          The trial judge, who saw the witnesses and heard the testimony first-hand, specifically found
that Officer Downing “requested that a family member request that the defendant return to the scene.
The family member went to the home and the defendant voluntarily returned to the scene and
attempted to perform field sobriety tests.” (Emphasis added.) Thus, the defendant was not under
arrest at that time and his statements to the officer were not a result of a custodial interrogation.
Cf. Sides, slip op. at 5 (“Any evidence developed prior to the unlawful arrest need not be suppressed
. . . .”). In our view, the trial court did not err by failing to suppress the defendant’s pre-trial
statements to police and his performance on the field sobriety tests.




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Accordingly, the trial court’s judgment is affirmed.



                                              ___________________________________
                                              GARY R. WADE, PRESIDING JUDGE




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