A Good Day for the Good Guys: Community Caretaking Lives!

For those of you unlucky enough to suffer through the recent in-service training that I did on search and seizure, you know the contempt that I have held for many of the recent CCA opinions on the community caretaker doctrine (or lack thereof).  Apparently the Tennessee Supreme Court heard my rant and rewarded us all with an excellent decision in State v. Kenneth McCormick,  — S.W. 3d — (2016), that helps restore a little of the balance to the world by reversing the CCA decision in Moats that held community caretaking was not an exception to federal and state constitutional warrant requirements.

Thanks again to Deputy DA Gene Perrin for his summary of the opinion.  The full text of the opinion can be found here:

http://www.tncourts.gov/sites/default/files/mccormickk_opn.pdf

 

FACTS:

 Trooper on routine patrol at 2:45 a.m. observes a vehicle parked in the roadway in front of a grocery store that was not open.  Upon approaching the car to do a welfare check, the trooper realized that the car was parked in such a manner that it blocked 75% of the entrance into the parking lot resulting in the left rear wheel protruding partially into the roadway.  The car’s engine was running and its lights were on.  The trooper parked on the roadway behind the car and activated his patrol car’s rear facing blue lights for safety reasons so that neither his own patrol car nor the suspect vehicle would be rear ended.  Upon approaching the car on the driver’s side, the trooper observed the defendant slumped over the steering wheel, despite a blaring radio, running engine, and activated headlights.  After taps on the window failed to arouse the defendant, the trooper opened the door and in so doing, detected a strong odor of alcohol on the defendant’s breath and person as well as observed an open beer bottle in the center console.  The trooper tried to wake the defendant for about a minute before the defendant responded.  At that time, the defendant was asked to step out of the vehicle and he was ultimately arrested for DUI.  The defense moved to suppress arguing an unlawful seizure of the defendant.  The trial court denied the motion finding the trooper’s testimony at all stages had been consistent that he approached the defendant’s car to conduct a welfare check and he had turned on his rear blue lights for safety reasons.  The DUI conviction was ultimately appealed to the TN Supreme Court.

 

HOLDINGS:

1) The TN Supreme Court overruled Moats and held that the community caretaker doctrine is an exception to the state and federal constitutional warrant requirements and as such, will justify a warrantless seizure of an automobile when an officer is acting as a community  caretaker.

2) For the purpose of this appeal, the Supreme Court presumed that the trooper’s actions in parking behind the defendant and activating his blue lights constituted a seizure.  The Court went on to note the community caretaker doctrine is an exception to the warrant requirements because modern society expects police officers to fulfill many duties and  interact with citizens in a number of ways beyond investigating criminal conduct.  Such activities include a general safety and welfare role for police officers in helping citizens in peril or who may otherwise be in need of some form of assistance.  The Court did caution that the caretaker role would be much more limited in a home or office than when dealing with vehicles that are movable and often contain in plain view evidence and fruits of criminal activity.

3) The community caretaking exception will justify a warrantless seizure so long as the State establishes (1) the officer possessed specific and articulable facts which, viewed objectively and in the totality of the circumstances, reasonably warranted a conclusion that a community caretaking action was needed, such as the possibility of a person in need of assistance or the existence of a potential threat to public safety; and (2) the officer’s behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need.

4) A trial court must carefully consider the facts of each case including the nature and level of  distress exhibited by the citizen, the location, the time of day, the accessibility and availability  of assistance other than the officer and the risk of danger if the officer provides no assistance. The officer’s subjective motivation is irrelevant since the law does not require an  officer to suppress his or her training and investigatory experience when carrying out the community caretaking function.  It should be noted in this case that the Trooper did testify he called for a municipal officer to come to the scene to assist him in his welfare check of the driver (defendant).

5) The Supreme Court found that the facts of the case warranted the trooper’s conclusion that a welfare check (community caretaking action) was necessary and appropriate.  The facts confronting the trooper suggested either a person in need of assistance or a potential threat to public safety, or both.   Additionally, the trooper’s behavior and scope of intrusion was reasonably restrained and tailored to his community caretaking need.  The defendant was slumped over the steering wheel of a car partially protruding in the roadway.  Given the time, location, and lack of assistance from other sources, the Court ruled the risk of danger had the officer provided no assistance was substantial and that the officer would be derelict in his duty as a police officer had he failed to take steps to determine the defendant’s welfare.

6) The Court further found that by the time the trooper asked the defendant to step out of his vehicle, he possessed at least reasonable suspicion that the defendant was under the influence of an intoxicant thus allowing the follow-up DUI investigation.  Conviction affirmed.

 

Be Careful What you Promise: Recent CCA Decision Overturns Conviction Based on Pre-Plea Agreement

Thanks to Deputy District Gene Perrin for his summary of this recent Court of Criminal Appeals decision.  The decision highlights the perils of making agreements on the front end of an investigation.

The full decision can be found here:

State v. Randy Lane, 2015 WL 8029834 (Tenn. Crim. App. at Knoxville, Dec. 7, 2015)

Facts:

After being notified that the defendant had been taken into custody by the Bradley County Sheriff’s Department and at the time of his arrest, the defendant was in possession of property that had been stolen from Knox County residents, a Knox County Detective went to Bradley County to speak with the defendant. The defendant asked Detective Webb to “solicit a plea deal” from the district attorney’s office in which he would plead guilty to “[s]ix felony burglaries” in exchange for serving the new sentences concurrently with the previously imposed nine–year sentence.  Detective Webb testified that he telephoned Knox County Assistant District Attorney General Jennifer Welch. General Welch told Detective Webb that based on what he was telling her, “that we could offer that to him.” Detective Webb acknowledged that he “passed that along to” the defendant and that everyone intended for the defendant to plead guilty to six new burglaries and receive sentencing concurrent with the nine–year sentence. Subsequently, Detective Webb arranged for the defendant to be released into his custody so that the defendant could ride with him, point out the locations of the burglaries, and disclose where the stolen property was sold.

Detective Webb said that before they left the jail with the defendant, he advised the defendant of his rights. The officers then drove the defendant to Knox County, and the defendant identified the locations of his crimes. As they drove, Detective Coulter made a list of the addresses on a statement form, which became the defendant’s confession.  At the top of the rights form, the detectives wrote: “Per Knox County DA’s office—Randy Lane will be charged with no more than six felony charges—any sentence he may receive will run concurrent with the nine year sentence. Mr. Lane advised he has already been sentenced to nine years in Knox County TN.” A list of twenty–eight addresses is in the middle of the statement form, and the defendant initialed each address. At the bottom of the statement form, the detectives wrote: “Randy Lane—pointed out the above listed locations inside Knox Co. and advised he had either stole property/broke into the residence and stole property.”  It was later learned that the defendant was on bail at the time that he committed the Knox County crimes and that the agreed concurrent sentence could not be imposed due to the sentencing provision requiring consecutive sentencing. The defendant was later convicted at trial and on appeal, argued that his confession should have suppressed.

Holdings:

1) Unlike a plea agreement that involves court approval, this agreement was between two parties: the defendant and the State.  At the time the defendant and the State entered into the initial agreement, the State had not charged the defendant with a crime related to the burglaries. Therefore, the agreement in this case, in which the prosecutor promised not to prosecute the defendant fully in exchange for his truthful information, was a cooperation–immunity agreement.

2) Cooperation–immunity agreements, like plea agreements, are enforceable as contracts. When a contract involves a criminal prosecution, due process rights must be fiercely protected.”  Based on the agreement, the defendant confessed to twenty–eight burglaries. However, the agreement turned out to include an illegal sentence. Since the initial agreement provided for an illegal sentence, it was unenforceable.  As a result, the trial court should have granted the defendant’s motion to suppress.

What this means for you:

This scenario occurs often and should be dealt with carefully.  The ADAG in this case entered into an agreement without the benefit of knowing all the facts and circumstances surrounding the defendant and his past.  Understandably, the detective was under pressure to solve a number of burglaries so he facilitated the deal that would lead to the defendant’s cooperation.  Unfortunately, the defendant got the last laugh since the confession was the only thing that linked him to the crimes charged.  An agreement with a defendant that “all cooperation will be considered by the State in its charge decision and plea offer” is always appropriate.  Anything beyond that on the front end, especially when dealing with the defendant and not his attorney, should be carefully scrutinized

 

New Decision on Tampering With Evidence

The Court of Criminal Appeals released a new opinion last week regarding the sufficiency of evidence in a tampering with evidence case.  State v. Elahu Hill, Jr., W2015-00688-CCA-R3-CD (Tenn. Crim. App. Oct. 28, 2015)   Special thanks to Deputy District Attorney Gene Perrin for the following summary of the case:

Facts:

The Defendant was a passenger in a vehicle that ran a stop sign.  Investigator Smith conducted a traffic stop based upon this traffic violation. At some point, Sergeant Anderson took the Defendant out of the vehicle, handcuffed him, and placed him in the back of a patrol car. While doing so, Sergeant Anderson smelled marijuana and asked the Defendant if he “had anything on him,” and the Defendant initially denied having any contraband. Later, Sergeant Anderson took the Defendant out of the patrol car so that the Defendant could provide the officer with information for a booking sheet. Sergeant Anderson again smelled marijuana and asked the Defendant if he “had anything on him, to which the Defendant responded, “No.” Sergeant Anderson then specifically asked the Defendant, “Do you have marijuana in your mouth or something?” At that time, in plain view, the Defendant spit out the baggie of marijuana that had been underneath his tongue.

Legal Analysis:

A tampering with the evidence charge requires the State to prove three elements beyond a reasonable doubt—“timing, action, and intent.  The timing element requires that the act be done only after the defendant forms a belief that an investigation or proceeding „is pending or in progress.   The action element requires alteration, destruction, or concealment.  Here, the State’s case against the Defendant was based on the Defendant’s concealment of the baggie of marijuana from investigators. To “conceal” a thing means “to prevent disclosure or recognition of” a thing or “to place [a thing] out of sight.  To establish the “intent” element, the proof must show that the defendant intended for his actions “to hinder the investigation or official proceeding by impairing the record’s, document’s, or thing’s verity, legibility, or availability as evidence. Tampering with evidence is a “specific intent” crime.  Accordingly, the State in this case was required to prove beyond a reasonable doubt that when the Defendant placed the baggie of marijuana in his mouth, he intended to impair its availability as evidence in either the police investigation or his eventual trial.

Holding:

The Defendant’s alleged concealment delayed minimally, if at all, the officers’ discovery of the marijuana.  Moreover, there was no proof that the Defendant’s act of putting the baggie into his mouth impaired the availability of the marijuana as evidence against the Defendant.  Officers collected the baggie and sent it to the crime lab, and the State offered the recovered evidence against the Defendant at trial. Accordingly, under the facts of this case, we conclude that the evidence presented was insufficient to support the Defendant’s conviction for tampering with evidence, and we reverse and vacate the conviction.

State v. Elahu Hill, Jr., W2015-00688-CCA-R3-CD (Tenn. Crim. App. Oct. 28, 2015)

Points of Consideration:

1) In a similar situation as this, charge attempt to tamper with evidence since it is clear that the

defendant intended to conceal the evidence and took a step towards the crime.

2) An officer should always advise a suspect that taking contraband into jail will result in an

introduction charge thus be prepared to deal with this situation.

3) Had the defendant actually swallowed any part of the evidence, the tampering conviction

would stand. As in all cases, call us if you have any questions.

Important Decision Goes Our Way Regarding Statements Made By Child to Non Law Enforcement Personnel

Yesterday the United States Supreme Court issued an opinion in Clark v. Ohio on whether the statements made by a 3 year old to his teacher regarding the source of his injuries were considered testimonial in light of Crawford and the 6th Amendment.

The full decision can be found here: http://www.scotusblog.com/case-files/cases/ohio-v-clark/?wpmp_switcher=desktop

A brief summary of the facts and procedural history:
Summary prepared by Sasha Rutizer, Senior Attorney at NDAA

Darius “Dee” Clark served as his girlfriend’s pimp. He sent her to D.C. for “work” while he cared for her two children; L.P. (a 3 year old boy), and A.T. (an 18 month old girl). The next day L.P. showed up to his new preschool and one of his teachers (Ramona Whitley) noticed his bloodshot eye and asked him what happened. L.P. said nothing…then that he fell. In the light of the classroom she noticed that there were welts or whip marks on his face. This teacher notified the lead teacher (Deborah Jones). Jones asked L.P. “what happened, who did this to you.” To which L.P. replied “Dee.” Jones asked “Is Dee big or little.” L.P. replied “Dee is big.” Both teachers brought L.P. to their supervisor who removed L.P.’s shirt and noticed more injuries. As mandated reporters, they called the child abuse hotline. Dee showed up before the social workers did, and said he had no idea how the injuries got there, and took. L.P. Social Work found L.P. the next day at Dee’s mother’s house. They also found A.T., who was covered head to toe in injuries. Dee was charged with several counts of child abuse.

At trial, L.P. was found incompetent to testify. The State admitted L.P.’s statements though the teacher, over the objection (Crawford) by defense. The trial court found that the statements bore sufficient guarantees of trustworthiness. Clark was convicted, and sentenced to 28 years of prison.

The State Appellate Court reversed, saying that L.P.’s statements qualified as testimonial because the primary purpose of the teachers’ questioning was “not to deal with an existing emergency but to gather evidence potentially relevant to a subsequent criminal prosecution.” The Ohio Supreme Court affirmed the appellate court’s decision. The Ohio Supreme Court went on to say that because the teachers were mandatory reporters, they were acting as agents of the state, and “sought facts concerning past criminal activity to identify the person responsible, eliciting statements that ‘are functionally identical to live in-court testimony.’”

Issue: Whether statements made to persons other than law enforcement officers are subject to the Confrontation Clause.

Holding:
The court decides to use the primary purpose test as the beginning of their calculus. This is interesting, and against the views of many scholars since the primary purpose test had been reserved for engagement with law enforcement officers, not citizens. Nonetheless, it now appears to be the test we must all apply. The teachers in this case were clearly engaged in an ongoing emergency. Again, this is interesting because this language has been typically reserved for law enforcement engagements. “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.” They go on to say how children have no understanding of the details of the criminal justice system. This seems to indicate that we are mostly concerned with the point of view of the declarant. This should be helpful to prosecutors regardless of whether they handle child cases.

Reversed.

Prolonging an Investigatory Stop

A recent decision from the Tennessee Supreme Court addressed issues surrounding the prolonging of an investigatory stop. The case was State v. Montgomery, 2015 Tenn.Lexis 271 (Tenn. Mar. 27, 2015). The full text of the opinion can be found here:

http://www.tsc.state.tn.us/sites/default/files/montgomerymechelleopn_0.pdf

Special thanks to summer intern Josh Rose for his summary of the opinion.

Issue:
Whether the officer unreasonably prolonged the investigatory stop.

Facts:
Ms. Brown reported an “unwanted person” at her residence. Defendant was identified by Ms. Brown as the “unwanted person” and based on a conversation between Defendant and Ms. Brown, defendant appeared to be intoxicated.
Officer Shoap and Officer Reiman responded to the call. Officer Shoap took lead in the ensuing investigation and Officer Reiman acted as backup. While driving to the Brown residence, the officers observed a black mustang matching the description of the vehicle driven by suspected trespasser reported to be intoxicated. The vehicle was parked in a church parking lot and had two female occupants. Officer Shoap continued to the Brown residence, while Reiman drove into the church.
Officer Reiman proceeded to ask the two women for identification and retained their driver’s licenses for “ten to fifteen minutes.” After Officer Shoap arrived at the church, field sobriety tests were administered and defendant was subsequently arrested.
Analysis:
This Court has recognized three categories of police interventions with private citizens: (1) a full-scale arrest, which requires probable cause; (2] a brief investigatory detention, requiring reasonable suspicion of wrongdoing; and (3) a brief police-citizen encounter, requiring no objective justification. State v. Echols, 382 S.W.3d 266,277 (Tenn. 2012).
Defendant was seized at the time Officer Reiman took possession of Defendant’s driver’s license, explaining, “We’re going to hang out here for a little bit” Court states the consensual encounter matured into a seizure.
The Court cited Thompson v. Commonwealth, 2005 Ky. Unpub 135 (Ky. Oct. 20,2005), holding that an officer acted reasonably when he detained suspects “for approximately fifteen minutes while waiting for backup and for additional information; State v. Sera, 997 So. 2d 707 (La. App. 2 Cir. 2008), concluded that a detention was not unduly prolonged where an officer delayed a search for ten minutes to wait for back up; and Hartman v. State, 144 S.W.3d 568 (Tex. App. Austin 2004) that held an officer did not unreasonably prolong a detention by delaying field sobriety tests by five to fifteen minutes while waiting for backup.
The Tennessee Supreme Court found it was reasonable for Officer Reiman to briefly hold the suspects until the arrival of Officer Shoap. Officer Reiman knew that Shoap was “just… down the road” and it was reasonable to wait for a short period to find out whether Officer Shoap had acquired additional information at the Brown residence. Additionally, by waiting on Officer Shoap, Officer Reiman was able to “assist by supervising and making sure the scene was safe” while Officer Shoap conducted the field sobriety. Finally, it was prudent for Officer Reiman to wait for a second officer given presence of a passenger inside the Defendant’s vehicle. Michigan v. Long, 436 U.S. 1032,1047. (Investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.) Under these circumstances, Officer Reiman had a reasonable basis for detaining the suspects for ten to fifteen minutes until Officer Shoap arrived rather than completing the investigation on his own.

Conclusion:
Court found Officer Reiman had a reasonable basis for waiting ten to fifteen minutes for Officer Shoap rather than completing the investigation.

Retaliation for Past Acts

A recent case from the Court of Criminal Appeals, State of Tennessee v. Eddie Jo Whitaker, No. E2014-01066-CCA-R3-CD – Filed March 27, 2015, discussed the evidence needed to convict of Retaliation for Past Acts under T.C.A.39-16-510.

In order to support a defendant’s conviction for retaliation for past action as charged
in the indictment, the State is required to prove the following elements: (1) that the
defendant harmed or threatened to harm the alleged victim by any unlawful action; (2) that
the alleged victim had been a witness at an official proceeding; (3) that the defendant did so
in retaliation for anything the witness did in an official capacity as a witness; and (4) that the
defendant acted either intentionally, knowingly, or recklessly. See Tenn. Code Ann. § 39-16-
510. The Defendant asserted that because the victim was not called to testify, he was not a “witness at an official proceeding” as required by the statute, and thus, the evidence was insufficient to convict him.

Special thanks to Morgan Droke, summer intern at our office, for her synopsis of this case.

On August 25, 2009, the victim, Mark Bell, was subpoenaed to testify against the Defendant. Mr. Bell was present in court that day and saw the Defendant in the courtroom, but that he did not actually testify against the Defendant. As the Defendant was leaving the courtroom, he told Mr. Bell that “if he caught [Mr. Bell] on the Kentucky side, he’d whip [his] a—.”
Later that day, on August 25, Mr. Bell was driving through Jellico when the Defendant pulled in behind Mr. Bell and, motioning with his hand out the window, “tried to flag [Mr. Bell]” to get him to pull over. Mr. Bell pulled over on the side of the road, and the Defendant then pulled his vehicle over, exited, and approached Mr. Bell’s vehicle. The Defendant asked Mr. Bell why he had “showed up in [c]ourt against him that day,” and Mr. Bell responded that he had been “summonsed [sic] and … had to show up.” According to Mr. Bell, the Defendant “kind of acted like he understood, but he was aggravated about it.” The Defendant complained that the case against him “was a bunch of BS,” and that “he was gonna have to pay an extra [$]5,000 to get out of it.” The Defendant also alleged that “the only reason that [the prosecuting officer] was doing this was because … [the Defendant] wouldn’t sleep with her.” This conversation went on for “a couple of minutes.” Eventually, the Defendant walked back to his vehicle, and Mr. Bell drove away.
Mr. Bell next saw the Defendant on August 26, 2009, at Jellico City Hall. Mr. Bell was sitting in the court clerk’s office when he saw the Defendant walking towards the office. Initially, Mr. Bell “didn’t think nothing of it” because “[the Defendant] could have been coming in for any business.” However, the Defendant proceeded to point his finger at Mr. Bell and said, “That right there is the one I’m gonna kill,” as he walked toward Mr. Bell. Mr. Bell testified that he “just looked at [his] magazine” and “tried not to say anything back because [he] was on duty and didn’t want to risk losing [his] job or anything.” Mr. Bell explained that he “didn’t know what to think” and “was kind of shocked” by the Defendant’s threat but that he did take the threat seriously because “[i]t ain’t every day somebody tells you they are gonna kill you….”
On cross-examination, Mr. Bell testified that he was about six-foot, four-inches tall and weighed about 308 pounds. He said that he could not estimate the Defendant’s height and weight but admitted he was “a lot bigger” than the Defendant. Nevertheless, Mr. Bell insisted that “just because [the Defendant’s] littler [sic] than me don’t mean he can’t whoop me.” Mr. Bell admitted that the Defendant was not arrested on August 26, 2009, and, in fact, was arrested two or three days later.
The trial court sentenced the Defendant to six years on each charge, to be served consecutively for a total effective sentence of twelve years in the Tennessee Department of Correction.

In State v. Manning, the Court concluded that the act of signing an affidavit made one a witness under the statute, regardless of whether the witness testified in court. 909 S.W.2d 11, 12 (Tenn.Crim.App. 1995). In State v. Bobby Gene Wilson, the Court expanded on that conclusion, holding that “signing [an] affidavit of complaint is [not] the exclusive way for one to become a ‘witness.’ ” No. 01C01–9711–CC–00552, 1999 WL 233553, at *2 (Tenn.Crim.App. Apr. 22, 1999).
Even though Mr. Bell was not the complaining party to the original action, the Court held that he was a witness within the meaning of section 39–16–510. He appeared, under subpoena, to testify against the Defendant. Mr. Bell’s presence in the courtroom was the basis for the Defendant’s subsequent threats directed at him.
The Court further concluded that the evidence was otherwise sufficient to support the Defendant’s conviction. The Defendant threatened Mr. Bell twice following his court appearance and specifically referred to Mr. Bell’s presence in the courtroom. From those facts, the Court concluded that there was sufficient evidence from which the jury could have found the Defendant guilty of retaliation for past action.
Because it is the job of the jury to decide the merits of testimony given, the fact that the Defendant was not immediately arrested after the threats does not prove that they were not serious, as the Defendant argued, and the Defendant’s sentence as far as retaliation for past action was affirmed.

Miranda Warnings and SFSTs

An issue has come up at several recent trainings about whether an officer has to give Miranda warnings prior to administering standardized field sobriety test. ADA Lesley Tiller provides an excellent summary and discussion of the issue:

I have done research on the issue and feel confident in telling you that you DO NOT have to give Miranda warnings before you ask a suspected DUI driver to do SFSTs.

In order for the dictates of Miranda to be implicated, the person needs to be “in custody” and you have to be “interrogating” them. The United States Supreme Court, in Berkemer v. McCarty, 468 U.S. 420 (1984), addressed the inter-play between Miranda warnings and traffic stops. In Berkemer, the Trooper had already decided that he was going to arrest the subject and asked him “a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists.” The court found that “[t]reatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.”

One thing that some of you mentioned yesterday was that you were concerned that if you had already decided that you were going to arrest somebody before you asked them to perform SFSTs, were they not “in custody” then? No, according to the Supreme Court, because when a court looks to determine if someone is “in custody”, they don’t look at your “unarticulated plan.” Rather, they look at “whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”

The TN Court of Criminal Appeals has also addressed this issue numerous times. One interesting case I found was State v. Stidham, 2008 WL 5397900, 4 -6 (Tenn.Crim.App.,2008). I have included a larger excerpt of the case below, but here is the most important paragraph, in my opinion. In this paragraph, they explain that even after the suspect failed SFSTs, the officer could still ask her questions about her impairment without giving her Miranda warnings (the reason was – she was not “in custody” yet) —-

“As we stated earlier, the appellant contends that Officer Cantwell intended to arrest her after she failed her field sobriety tests; therefore, she contends, that after she failed the tests the officer should have immediately Mirandized her prior to asking additional questions regarding her drug use. However, as we noted earlier, “persons temporarily detained pursuant to a traffic stop, even one that may involve some investigation regarding intoxication, are not ‘in custody’ for the purposes of Miranda.” Godfrey, No. 03C01-9402-CR-00076, 1995 WL 120464, at *2. Therefore, “asking a modest number of questions and requesting the performance of field sobriety tests at a location visible to passing motorists do not, by themselves, constitute treatment that can fairly be characterized as the functional equivalent of a formal arrest.” Godfrey, No. 03 C0 1-9402-CR-00076, 1995 WL 120464, at *3 (citing McCarty, 468 U.S. at 442, 104 S.Ct. at 3151); see also Snapp, 696 S.W.2d at 371; State v. John Lee Dockery, No. E2000-00753-CCA-R3-CD, 2000 WL 1839132, at *2 (Tenn.Crim.App. at Knoxville, Dec. 14, 2000). Thus, Officer Cantwell did not violate Miranda when, during the traffic stop, he asked the appellant questions relating to the traffic stop. Moreover, the video demonstrates that the appellant was not “under arrest,” even by her own argument, at the time she first disclosed that she had taken Xanax.”

State v. Stidham, 2008 WL 5397900, 4 -6 (Tenn.Crim.App.,2008)

Recent Evading Arrest Case

A recent Court of Criminal Appeals decision examined the offense of evading arrest and the elements needed to convict. Deputy District Attorney Gene Perrin has provided this summary and explanation of the decision.

The evading arrest statute provides, in pertinent part, that “it is unlawful for any person to intentionally flee by any means of locomotion from anyone the person knows to be a law enforcement officer if the person . . . [k]nows the officer is attempting to arrest the person.” T.C.A. § 39-16-603(a)(1)(A). An essential element of the offense of evading arrest is that the defendant “[k]nows the officer is attempting to arrest” him at the time he flees.

The issue is whether the officer was attempting to arrest the defendant and if so, whether the defendant knew that. State v. Holbrooks, 983 S.W.2d 697 (Tenn. Crim. App. 1998). Logic dictates that if an officer is not attempting to arrest the defendant, then there is no arrest for the defendant to evade. This Court has consistently held that where an officer is not actually attempting to arrest the defendant, a conviction for evading arrest cannot stand. In Holbrooks, the officer lacked probable cause to arrest the defendant until after he apprehended the defendant and asked him a few questions to determine that the defendant was trespassing; therefore, this Court determined that the officer was not attempting to arrest the defendant at the time he engaged in his pursuit.

In State v. Antonio Faulkner, this Court overturned a conviction for evading arrest
when the officers testified that, at the time their pursuit of the defendant began, they were
merely attempting to investigate his potential connection to a robbery, even though the
defendant matched the description of one of the men who had robbed a pizza delivery man
and was carrying a pizza box. No. 03C01-9806-CR-00217, 1999 WL 1039714, at *3 (Tenn.
Crim. App. Nov. 12, 1999). In Vincent Conner, this Court overturned a conviction for
evading arrests when the proof showed that the officers approached the defendant not to
arrest him but to serve him with papers, the defendant was not engaged in any obvious illegal
activity that would support an arrest, and the officers never announced that they were
attempting to arrest him. 2006 WL 2563372, at *7. In State v. Christopher Burress, this
Court determined that the officer was not attempting to arrest the defendant when the officer
approached a large group of people, of which defendant was but one, in response to a call
about a possible shooting and the group, including defendant, ran off. No.
E2012-00861-CCA-R3-CD, 2013 WL 1097809, at *6 (Tenn. Crim. App. Mar. 18, 2013),
perm. app. denied, (Tenn. July 10, 2013).

On the night in question, Officer Hamilton was told by Sergeant Martin to be on the
lookout for Defendant in relation to a vandalism of a vehicle. Both officers also responded
to a call about a potential robbery in progress; the occupants of the home named Defendant
as the person who had come to their door. When Officer Hamilton found Defendant a few
minutes later, he did not activate the blue lights on his patrol vehicle. Officer Hamilton
testified that he “intended to speak with [Defendant] in reference to the vehicle vandalism
and also the disturbance call.” Officer Hamilton asked Defendant to step in front of the
patrol vehicle so that their encounter would be recorded by the vehicle’s dash camera.
Defendant responded, “For what?” As he was exiting the patrol car, Officer Hamilton again
asked Defendant to step in front of the vehicle. Defendant stated that he was not going to
jail and ran. Officer Hamilton deployed his Taser to subdue and apprehend Defendant.
Officer Hamilton then approached Defendant and told him that all he wanted to do was talk
to him. There was insufficient evidence presented at trial that Officer Hamilton was actually
attempting to arrest Defendant at the time he ran.

Even though Ms. Spurlin testified that Officer Hamilton told her that Defendant was under arrest for public intoxication, Officer Hamilton did not testify that he was attempting to arrest Defendant for that crime. Additionally, it is not clear whether he had probable cause to arrest Defendant for public intoxication until after he apprehended Defendant. Officer Hamilton testified that he was investigating the reported vandalism of a vehicle and alleged robbery, but he never clearly testified that he intended to arrest Defendant. On direct examination, he stated that he intended to speak with Defendant regarding those incidents. On cross-examination, he stated that his investigation would “likely . . . result in an arrest,” but he could not say that he intended to handcuff Defendant at the time he exited his patrol car. He never announced that
Defendant was under arrest. Even if Defendant’s statement that he was not going to jail could be interpreted as an admission that he believed that the officer was attempting to arrest him, there must have been an actual arrest for him to evade. Even in the light most favorable to the State, we cannot conclude that there is sufficient evidence that Officer Hamilton was attempting to arrest Defendant at the time that Defendant fled. Therefore, we reverse Defendant’s conviction for evading arrest and dismiss that charge.

As indicated in the summary of the case, the Criminal Court of Appeals reversed the conviction for evading arrest finding that the officer was not trying to make an arrest of the defendant but was simply trying to speak with him concerning a report of vandalism. Even though the defendant told the officer that “he was not going to jail,” the Court found that there has to be an arrest or an attempt to make an arrest before one can evade the arrest.

When an officer charges evading arrest and the case goes to trial in criminal court, the jury is instructed as follows:

For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:

(1) that the defendant by any means of locomotion fled from a person he knew to be a law enforcement officer, and

(2) that the defendant knew the officer was attempting to arrest him or had arrested him, and

(3) that the defendant acted intentionally.

Therefore, an officer must have made the decision that probable cause exists to make an arrest before a defendant can evade arrest. This begs the question of what an officer should do if he or she has not made the determination of probable cause but while still in the investigative stage, a suspect runs. If the officer has determined that reasonable suspicion exists that (1) a crime has occurred, is occurring, or is about to occur and (2) the defendant is connected to the criminal activity, the officer can give chase and detain a suspect long enough to confirm or dispel the reasonable suspicion that allowed the detention in the first place. What an officer cannot do is make an arrest for evading arrest based upon the mere running from the officer.

A second question posed was how this affects the standard traffic stop since in most cases an officer is not intending to make an arrest but is simply stopping a vehicle for a traffic violation. The offense of evading arrest while operating a vehicle does not require that the officer be attempting to make an arrest or has made an arrest of the operator. Instead, the statute merely requires that the operator of a vehicle receive a signal from an officer to bring the vehicle to a stop and remain stopped until released. Thus the holding of this case does not affect the standard traffic stop.

Find the full text of the opinion here:
http://tncourts.gov/sites/default/files/brandonryanopn.pdf