Assigned on Briefs October 21, 2014 at Knoxville
Appeal from the Criminal Court for Shelby County No. 11-05251 John W. Campbell, Judge
Claiborne Hambrick Ferguson, Memphis, Tennessee, for the appellant, Marcus Puckett. Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Michael R. McCusker, Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert L. Holloway, Jr., JJ., joined.
D. KELLY THOMAS, JR., JUDGE
At trial, Officer Joshua Schultz testified that he was employed by the Germantown Police Department and that in November 2010, he was assigned as a task force officer with the Shelby County Sheriff's Office in the Metro DUI unit. Around 3:00 a.m. on the morning of November 28, 2010, Officer Schultz was driving north on Houston Levee Road in route to assist with a DUI stop in the northern part of Shelby County. While he was driving, he noticed a green Cadillac swerving in its lane, touching both lane lines, and stopping at a green light. Based on these initial observations, Officer Schultz turned on his dashboard camera and continued to follow and observe the vehicle. Officer Schultz watched the vehicle slow down and proceed halfway into a left turn lane before suddenly speeding up and continuing northbound on Houston Levee. The vehicle briefly crossed over the double yellow lines, and Officer Schultz became concerned that the driver might be either intoxicated or falling asleep.
Officer Schultz initiated a traffic stop. Officer Schultz approached the vehicle and knocked on the driver's side window, and the driver rolled down his window. At trial, Officer Schultz identified the Defendant as the driver of the vehicle. Officer Schultz noticed that there was glass on the dashboard, that the windshield was broken, and that there was blood on the steering wheel and dashboard. The Defendant was not wearing a shirt, and he was bleeding from his face. Officer Schultz could also see that there was a passenger in the vehicle, and at that point, he requested that the Defendant step out of the vehicle.
According to Officer Schultz, he smelled a "moderate odor of an intoxicant on [the Defendant]. . . . within the first . . . five to ten seconds of talking to [the Defendant]." He explained that, generally, "moderate" meant that you could smell the alcohol while standing within a few feet of a person and talking to them. At trial, Officer Schultz also recalled that the Defendant's eyes appeared "glassy, red-eyed, sleepy" and stated that the Defendant's speech was "[n]ot very coherent."
Officer Schultz had a short conversation with the Defendant outside the vehicle and then proceeded to handcuff the Defendant and place him in the back of his police cruiser. Officer Schultz testified that he took these actions because he was still trying to figure out exactly what had occurred in the car, and also because at that point he smelled alcohol and suspected that the Defendant was under the influence of an intoxicant.
Officer Schultz stated that he did not conduct any field sobriety tests because it was very cold outside and the Defendant was not wearing a shirt. Because the Defendant had blood on his person, Officer Schultz called an ambulance to the scene, and shortly thereafter paramedics arrived to check on the Defendant. The paramedics attended to the Defendant and cleaned up the blood on his face and hands, but it was determined that he did not require further medical assistance. He was then placed back in the police cruiser.
According to Officer Schultz, he read the Defendant the implied consent law, and the Defendant agreed to submit to a breath-alcohol test. Officer Schultz then entered the Defendant's information into the breathalyzer machine and began the twenty-minute observation period. After the requisite observation period, the Defendant provided a breath sample, and according to the test results, the Defendant's blood-alcohol level was .205 percent.
Before trial, the Defendant filed a motion to suppress evidence of his breath-alcohol test, and the trial court held a hearing on the matter on March 9, 2012. The Defendant argued that the officer did not have reasonable suspicion to stop the Defendant, that he did not have probable cause to arrest the Defendant, that he had failed to comply with the twenty-minute observation period required by Sensing, and that the officer did not provide the Defendant with Miranda warnings. At the hearing, Officer Schultz testified that he decided to pull the Defendant over after following him and observing him commit multiple traffic offenses. He further testified that he decided to place the Defendant in handcuffs in the back of his vehicle because he "smelled a strong odor of intoxicant . . . observed [the Defendant's] eyes were blood shot and watery, glassy, very confused, unintelligible speech." Also, because of the blood on the Defendant and the broken windshield, the officer was concerned that there might have been a domestic dispute between the Defendant and the passenger.
According to Officer Schultz, the Defendant was under arrest at the time he was placed in handcuffs. He testified that usually he gave Miranda rights when he handcuffed a suspect, but that he could not recall whether he did on this particular occasion.
Regarding the twenty-minute observation period, Officer Schultz testified that he was not required to "stare" at the Defendant for the entire twenty minutes and that during that time, he "can be imputing things into the machine, or writing a note, or you know, reaching over to grab something out of [his] bag, or something like that." According to Officer Schultz, it was important to engage the subject in conversation during the observation period because it ensured that the person was "awake and talking, to know that there [was] nothing in their mouth and it [was] just a good way to pass twenty-one minutes as well." He stated that he did not observe the Defendant place anything in his mouth, burp, or regurgitate.
On cross-examination, the following exchange took place between trial counsel and Officer Schultz:
Q: In the video that you watched yesterday, you can see yourself performing, I don't know if it is note taking, but you're clearly doing some paperwork ...