        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               October 27, 2015 Session


            STATE OF TENNESSEE v. ANTHONY JOHN SILVA

               Appeal from the Circuit Court for Williamson County
                   No. CR108360     Deanna B. Johnson, Judge




                No. M2015-00121-CCA-R3-CD – Filed March 3, 2016
                        _____________________________

       The defendant, Anthony John Silva, was arrested on suspicion of driving while
intoxicated. He filed a motion to suppress the evidence, which the trial court granted.
The State now appeals, arguing that the defendant‟s arrest was sufficiently supported by
probable cause. Following our review of the briefs, the record, and the applicable law,
we reverse the judgment of the trial court granting the defendant‟s motion to suppress,
and we remand for further proceedings.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER, J., joined. D. KELLY THOMAS, JR., J., filed a dissenting opinion.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; Kim Helper, District Attorney General; and Carlin Hess, Assistant
District Attorney General, for the Appellant, State of Tennessee.

Mark L. Puryear III, Franklin, Tennessee, for the Appellee, State of Tennessee.


                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

     On January 19, 2014, at 2:36 a.m., Franklin Police Department Officer Adam
Cohen observed the defendant driving 46 miles per hour in a 35 miles per hour speed
zone. Other than his excessive speed, Officer Cohen did not observe anything erratic or
suspicious about the defendant‟s driving. Officer Cohen initiated a traffic stop, and the
defendant lawfully pulled his vehicle off of the road. Once Officer Cohen reached the
vehicle, he noticed an odor of alcohol coming from the vehicle. Officer Cohen also
observed that the defendant‟s eyes were bloodshot and watery. The defendant told
Officer Cohen that he had consumed three beers, although he did not specify precisely
when he had consumed the beers.

        Officer Cohen conducted several “pre[-]exit tests” to determine whether to have
the defendant exit the vehicle. He first asked the defendant to recite the alphabet, starting
with the letter “D” and ending with the letter “R.” He testified that the defendant said the
letter “T” instead of the letter “D,” although he agreed that it could have been interpreted
as “D.” He stated that the defendant had to pause several times throughout the recitation
to consider the next letter. Officer Cohen also administered the “finger dexterity test,” in
which the defendant was supposed to touch his thumb to his index, middle, ring, and
pinky fingers and then reverse the process. Officer Cohen testified that he had suspects
perform three repetitions of the dexterity test. Officer Cohen testified that he
demonstrated the test and then asked the defendant to perform the test “the same number
of times and in the same manner” that Officer Cohen demonstrated. Officer Cohen
testified that the defendant did not satisfactorily complete the test because he only
performed two repetitions of the test instead of the expected three repetitions. Based on
the defendant‟s performance on the pre-exit tests, Officer Cohen asked him to step out of
the vehicle.

        Officer Cohen next administered three field sobriety tests. He first had the
defendant perform the “walk and turn,” which required the defendant to take nine steps
walking heel to toe, make a turn, and then take nine more heel to toe steps to return to the
starting position. Officer Cohen testified that the defendant missed a heel to toe step,
made an improper turn, and stopped the test before it was completed. The defendant next
performed the “one leg stand test,” and he completed this test satisfactorily. The final
test was the “[m]odified Romberg balance test,” in which the defendant was to close his
eyes, tilt his head back, and silently estimate the passage of thirty seconds. Officer
Cohen testified that there was a margin of error of “plus or minus five seconds” and that
the defendant estimated 30 seconds had elapsed after 41 seconds had passed. Officer
Cohen testified that the defendant failed this test. Officer Cohen testified that he decided
to arrest the defendant “[b]ased on the totality of the circumstances, based off of all the
tests that [he] conducted, [and] the odor of [an] alcoholic beverage.” He also considered
the defendant‟s statement that he had consumed three beers. Officer Cohen believed that
the defendant was under the influence of alcohol.


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       The trial court issued a written order granting the motion to suppress. The court
found that Officer Cohen observed the defendant traveling eleven miles per hour over the
speed limit. The court credited the testimony of Officer Cohen that the defendant was
driving entirely within his own lane of traffic; did not “swerve”, “weave”, or “jerk” his
vehicle; and properly pulled off of the road. The court found that Officer Cohen
observed an odor of alcohol coming from the vehicle and that the defendant told Officer
Cohen that he had consumed three beers “hours earlier.” The court found that it was cold
on the evening of the stop and that the defendant complained about the temperature
several times. The court noted that Officer Cohen testified that the cold could adversely
affect a person‟s ability to perform the field sobriety tests. The court also noted that
Officer Cohen testified that many DUI suspects have difficulty holding their stance
before beginning some of the tests and that the defendant held his stance well and for a
lengthy period of time. The court found that the defendant was cooperative throughout
the stop.

        The trial court found that the defendant‟s performance on the pre-exit tests did not
give Officer Cohen probable cause to arrest the defendant. Based on its review of the
video recording of the stop, the court found that the defendant correctly said the letter
“D” instead of “T” and that the defendant‟s pause at the end of the recitation was not
unreasonable. The court found that while Officer Cohen demonstrated the finger
dexterity test three times and instructed the defendant to perform the test as Officer
Cohen did, Officer Cohen did not explicitly instruct the defendant to perform the test
three times. The court noted that the defendant “paused for only a second,” and Officer
Cohen then proceeded to administer field sobriety tests.

        The court also found that the defendant‟s performance on the field sobriety tests
did not create probable cause for his warrantless arrest. The court found that for the walk
and turn, the video indicated that the defendant only missed one step, and the court found
that this misstep was the result of the defendant‟s heel not touching his toe by an
extremely small margin. The court found that the defendant did not stop the test
prematurely. The court found that the Romberg test was supposed to be performed for
thirty seconds, that there was a margin of error of plus or minus five seconds, and that the
defendant performed the test for forty-one seconds. The court also found that a primary
purpose of the test was to assess balance and that the defendant “maintained his balance
well.”

       The court distinguished the instant case from that of State v. Bell, 429 S.W.3d 524
(Tenn. 2014). The court found that unlike the moving violation in Bell, in which the
defendant drove on the wrong side of a divided highway, the defendant‟s exceeding the
speed limit by eleven miles per hour was not a “significant” moving violation. The court
also found that the defendant‟s admission that he consumed three beers “hours earlier”
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was not as egregious as the admission in Bell, where the defendant admitted to
consuming more alcohol “than [he] should have.” Bell, 429 S.W.3d at 535. The court
found that there was no probable cause established “by other facts” as there was in Bell.

        The court found that the totality of the circumstances weighed against a finding of
probable cause to arrest the defendant. The court found that the defendant performed
“extremely well” on the one-leg stand. The court also noted that Officer Cohen testified
that it was cold on the evening of the stop and that the defendant complained about the
cold several times. The court observed that Officer Cohen admitted that the cold
temperature could adversely affect a person‟s ability to perform the field sobriety tests.
The court cited to Officer Cohen‟s testimony that many suspects often had difficulty
holding their stance before beginning some of the field sobriety tests and that the
defendant held his stance well and for an extended period of time. The court noted that
Officer Cohen testified that the defendant maintained his lane of travel, did not weave
within his lane, did not swerve, and did not jerk his vehicle. The court further cited to
Officer Cohen‟s testimony that the defendant pulled over immediately after Officer
Cohen initiated the stop and that the defendant was cooperative.

       After the trial court granted the motion to suppress, the parties entered an agreed
order dismissing the indictment. The State filed a timely notice of appeal challenging the
granting of the motion to suppress.

                                       ANALYSIS

        The State argues that the trial court erred in granting the defendant‟s motion to
suppress. The State contends that the defendant‟s speeding infraction, the odor of alcohol
coming from his vehicle, and his admission that he consumed three beers gave the officer
probable cause to arrest the defendant for driving under the influence. The defendant
responds that there was not adequate probable cause to justify his arrest for driving under
the influence of an intoxicant.

        A trial court‟s factual determinations in a suppression hearing will be upheld on
appeal unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). Questions regarding the credibility of witnesses, the weight or value of the
evidence, and determinations regarding conflicts in the evidence are matters entrusted to
the trial judge as the trier of fact. State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010).
“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 that evidence.” State v. Williamson, 368 S.W.3d 468,
473 (Tenn. 2012) (quoting Odom, 928 S.W.2d at 23). The trial court‟s application of the
law to the facts is reviewed de novo. State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000).
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        Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution provide protection for individuals against unreasonable
searches and seizures. State v. Day, 263 S.W.3d 891, 900-01 (Tenn. 2012). “[A]
warrantless search or seizure is presumed unreasonable, and evidence discovered as a
result thereof is subject to suppression unless the State demonstrates that the search or
seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). An arrest supported
by probable cause is an exception to the warrant requirement. State v. Bell, 429 S.W.3d
524, 529 (Tenn. 2014).

        Probable cause requires more than mere suspicion but need not rise to the level of
absolute certainty. State v. Melson, 638 S.W.2d 342, 350 (Tenn. 1982). The concept of
probable cause deals with probabilities and not with technicalities. State v. Echols, 382
S.W.3d 266, 278 (Tenn. 2012). “Probable cause depends on whether the facts and
circumstances and reliable information known to the officer at the time of arrest were
„sufficient to warrant a prudent [person] in believing that the [individual] had committed
or was committing an offense.‟” State v. Lawrence, 154 S.W.3d 71, 75-76 (Tenn.
2005) (quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)).

        The State cites to Bell in support of its argument that Officer Cohen had probable
cause to arrest the defendant, and the defendant responds that his case is distinguishable
from Bell. In Bell, officers stopped the defendant when he was driving the wrong way on
a divided highway. Id. at 526. The defendant smelled of alcohol, and he admitted that he
consumed “more than [he] should have” that evening. Id. Officers administered several
field sobriety tests, and the defendant‟s performance on the tests was “in dispute.” Id. at
531. The court held “that performance on field sobriety tests is but one of the many
factors officers should consider when deciding whether to arrest a motorist for DUI or
similar offenses without a warrant.” Id. at 534. The court proceeded to “examine the
facts surrounding [the defendant‟s] arrest to determine whether they provided [the
officer] probable cause to arrest him for DUI, notwithstanding his successful performance
on the field sobriety tests.” Id. at 535. The court concluded that the fact that the
defendant “was driving on the wrong side of a divided highway late at night, that he
smelled of alcohol, and that he admitted having imbibed „more than [he] should have‟”
clearly supported “a finding of probable cause for DUI.” Id. (alteration in original). The
court further concluded that even if the defendant successfully performed the field
sobriety tests, this performance did not sufficiently undermine the other evidence of
intoxication “so as to defeat a finding of probable cause for DUI.” Id. (footnote omitted).

       The defendant attempts to distinguish Bell by arguing that his traffic violation was
not as egregious as the one in Bell, that he admitted consuming less alcohol than the
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defendant in Bell, and that he did not exhibit any signs of impairment. However, as our
supreme court recognized, “a motorist „need not exhibit every known sign of intoxication
in order to support a determination of probable cause.‟” Bell, 429 S.W.3d at 535 (quoting
State v. Grohoski, 390 N.W.2d 348, 351 (Minn. Ct. App. 1986)). The record indicates
that Officer Cohen observed the defendant traveling 46 miles per hour in a 35 miles per
hour speed zone. When Officer Cohen stopped the defendant, he smelled the odor of an
alcoholic beverage coming from the vehicle, and the defendant had bloodshot and watery
eyes. Officer Cohen asked the defendant if he had consumed any alcohol, and the
defendant replied that he had consumed three beers. At this point, Officer Cohen had
probable cause to believe that the defendant had committed the offense of driving under
the influence, even if the defendant performed all field sobriety tests successfully. Bell,
429 S.W.3d at 535-36; see State v. Marvin Roscoe, No. W2013-01714-CCA-R9-CD,
2014 WL 3511041, at *4 (Tenn. Crim. App. July 11, 2014) (concluding that there was
probable cause for a DUI arrest when the defendant ran a stop sign, he and his vehicle
gave off a strong odor of alcohol, and he admitted having consumed three or four beers).
Having considered the totality of the circumstances, we conclude that Officer Cohen had
probable cause to arrest the defendant without a warrant for operating a motor vehicle
while under the influence of an intoxicant.

                                     CONCLUSION

       Based upon the foregoing, we conclude that the evidence preponderates against
the findings of the trial court, and we reverse the judgment of the trial court granting the
defendant‟s motion to suppress. We reinstate the charges against the defendant and
remand for further proceedings consistent with this opinion.




                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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