Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 20, 2014
Appeal from the Criminal Court for Washington County No. 37856 Stacy L. Street, Judge
Donald E. Spurrell, Johnson City, Tennessee, for the Defendant-Appellee, Boyce Turner.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn and John H. Bledsoe, Assistant Attorneys General; Anthony Clark, District Attorney General; and Kelly Lowe, Assistant District Attorney General, for the Appellant, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams, J., and David A. Patterson, Sp. J., joined.
CAMILLE R. McMULLEN, JUDGE
At the Defendant's September 13, 2013 suppression hearing, Trooper Jonathan Street of the Tennessee Highway Patrol, testified that at approximately 3:00 a.m. on February 10, 2012, he observed a Dodge pickup truck, which he recognized as belonging to the Defendant. Trooper Street recognized the truck because he had been involved in a previous arrest of the Defendant for "evading arrest, a DUI stop, cocaine charge, [and] a couple of other things, " and he recalled that the Defendant was convicted of DUI. Trooper Street ran the truck's tag number through NCIC and asked dispatch to check the status of the Defendant's license.
After confirming that the Defendant's license had been revoked for DUI, Trooper Street attempted to initiate a traffic stop of the Defendant in front of a restaurant parking lot. As the Defendant turned into the parking lot, his truck door "immediately flew open, " and the Defendant "looked back at [Trooper Street] and made a running motion towards downtown where the bars are located." Trooper Street pursued the Defendant on foot and gave verbal commands to stop. He chased the Defendant for about "a hundred meters" before catching him and tackling him to the ground. A citizen saw Trooper Street struggling with the Defendant on the ground and asked if he needed help. Trooper Street asked the citizen to "call 911, tell them to send me a city officer . . . . [T]here's no other troopers around." Trooper Street testified that the closest state trooper was Sergeant Appleba, who was a 30-minute drive away.
Trooper Street used pepper spray to gain control over the Defendant and handcuff him. Officer Mike Butler of the Johnson City Police Department helped Trooper Street escort the Defendant back to the patrol car. Trooper Street recalled that the Defendant smelled of alcohol and was "agitated" and "belligerent"all the way back to the patrol car. After Trooper Street secured the Defendant in his patrol car, he secured the scene and called dispatch to let them know what had happened. Per highway patrol policy, Trooper Street had to call his supervisor because he had used chemical agents to subdue the Defendant but could not recall whether his supervisor came to the scene or the hospital. Trooper Street also had to have the Defendant's vehicle towed before leaving the scene. He estimated that he was at the scene for 30 to 45 minutes before being able to leave.
Trooper Street took the Defendant to the Johnson City Medical Center, about five to seven minutes away, for medical personnel to wash out and check his eyes. Trooper Street stated that due to the distance of the hospital, he decided to take the Defendant rather than wait on an ambulance. While being treated at the hospital, the Defendant continued to be "very unruly." Trooper Street stated, "[T]here was no way I was going to leave him there unattended due to his previous behavior." After a nurse washed out the Defendant's eyes, Trooper Street directed that a blood sample be taken from the Defendant. Trooper Street estimated that approximately an hour had passed since the initial traffic stop.
Trooper Street testified that in February 2012, there were "no procedures in place" for the Tennessee Highway Patrol to easily obtain DUI search warrants. He explained, "[T]here was no form set up. There was no simple way of going about it." Trooper Street testified that because of the time of the stop and lack of procedures, it would have been "extreme[ly] difficult" to obtain a search warrant in this case. He opined that it would have taken "several hours [to get a warrant] due to what all had taken place before, " and explained:
It just wasn't a . . . typical DUI stop, if you can call one that, of where you stop the car, go directly through field sobriety and then go that route it was due to the pepper spray, the foot chase, me being by myself, it just really changed the whole scenario.
On cross examination, Trooper Street agreed that he had subdued and arrested the Defendant within 10 minutes of his initial stop. He further agreed that Johnson City police officers responded to and assisted him at the scene. When asked whether he could have asked Johnson City police officers to "guard" the Defendant for him while he attended to other business, Trooper Street stated, "[A]s highway patrol[, ] we do not turn our prisoners over to another agency . . . . I would have been in violation [of Tennessee Highway Patrol policies]." He agreed, however, that his supervisor could have guarded the Defendant while he obtained a search warrant. He reiterated that there was no policy in place at the time to obtain a warrant. Trooper Street stated that since the Defendant's arrest, highway patrol procedures have changed to allow troopers to easily obtain DUI search warrants. He explained, "Now, . . . I'[m] very capable of [obtaining a DUI search warrant]. We have judges on call. We have DA's on call. We have forms. At that time[, ] none of this was in place." He stated that under current procedures, he calls the prosecutor on call to determine whether he needs to proceed with a search warrant, has the prosecutor read over the search warrant to ensure it is correct, and then contacts a judge to have the warrant signed. He agreed that he made no attempt to obtain a warrant but stated that he believed he was working under the law at that time in "good faith."
The Defendant agreed that he initially fled from Trooper Street after being pulled over but insisted that he stopped fleeing and did not resist arrest. After he stopped, Trooper Street tackled him and "was trying to grab [him] and put [his] hands behind [his] back." The Defendant claimed he was not resisting but it sounded "like it was a scuffle" because Trooper Street was trying to secure the Defendant. A passerby asked Trooper Street if he needed help, and Trooper Street told him to call 911. Trooper Street then used pepper spray on the Defendant and handcuffed him. Trooper Street walked the Defendant back to the patrol car and called another trooper to the scene. The Defendant ...