In State v. Childs, 2023 WL 7321165 (Tenn. Crim. App), Sumner County Sheriff’s Department Deputy Pierce arrested Ms. Childs for driving under the influence (DUI). The Deputy had been dispatched to 114 Harsh Lane to respond to “a possible reckless driver call” or “trespass” complaint. The caller(s) told the dispatcher that a green Toyota had pulled into the driveway at 116 Harsh Lane and had sat there for a few seconds before pulling across the property to enter the driveway of 114 Harsh Lane. The Deputy was dispatched at 10:17am and arrived at the scene about five minutes later.
Deputy Pierce testified at a pretrial hearing that he pulled his police car close to the Toyota in the driveway but did not activate his blue light. The Toyota would have had to pull around the police car to leave. The Deputy considered his interaction at first to be in the nature of “a welfare check”. He approached the Toyota and found Ms. Childs in the driver’s seat of the car but facing the passenger side. She did not realize that he was standing at the driver’s door until about two minutes had passed. She was texting. Deputy Pierce tapped on the window and engaged her in a conversation. The engine was running. He noticed that she had slightly slurred speech, bloodshot eyes, dilated pupils and an odor of alcoholic beverage was coming from the Toyota interior. Ms. Childs told him that “she had a drink the previous night.” She humorously admitted that she had driven across the neighbor’s yard. She said that she lived at 114 Harsh Lane.
The Deputy administered a horizontal gaze nystagmus (HGN) test. No other field sobriety test was administered because Ms. Childs declined to participate. She explained that prior fractures in her feet would interfere with her ability to do so. She was then officially arrested for DUI, without a warrant. After being read the implied consent notice form, she agreed to a blood test. A blood sample was taken about one hour, forty minutes after her initial contact with Deputy Pierce.
According to the appellate court opinion, Deputy Pierce testified during a pretrial hearing that: “he did not see her driving or in control of a motor vehicle and that she did not commit an offense or breach the peace in his presence. He also did not suspect her of committing a felony, attempting suicide, causing a traffic accident or stalking.” Nor did Deputy Pierce claim to see evidence of reckless driving. A Tennessee statue sets forth the twelve instances that an officer may arrest a person without an arrest warrant. By omission, the statute does not authorize the arrest of a person for allegedly committing a misdemeanor offense or breach of the peace out of the presence of the officer. T.C.A. 40-7-103 and 103(a)(1).
The toxicology report, received later, reflected a blood alcohol content (BAC) of .048 gm. percent, well below the .08 threshold for per se impairment and to raise an inference of impairment. T.C.A. 55-10-401 and 411.
Following her indictment, Ms. Childs attorney first filed a motion to suppress the evidence discovered during her warrantless arrest. Ms. Childs attorney later filed a second motion which sought to dismiss the indictment because of the warrantless arrest.
After the evidentiary hearing, at which Deputy Pierce testified, the trial judge announced oral findings of fact which included that Ms. Childs had been driving the vehicle and accidentally pulled into the wrong driveway. The judge then orally granted the motion to dismiss the indictment on the basis that the warrantless arrest for a misdemeanor, not committed in the presence of the officer, was unlawful, absent some exception, which he found not to exist, pursuant to T.C.A. 40-7-103(a). However, it seems that the written order entered later by the trial judge granted both the motion to dismiss and the motion to suppress. The State appealed.
The Court of Criminal Appeals reversed the dismissal of the indictment, explaining that, “the proper remedy for an illegal arrest is suppression of the evidence seized as a result of the arrest, not dismissal of the indictment.” The court cited two of it’s published decisions for the proposition that “(‘Generally an illegal arrest does not invalidate an indictment.’)”. State v. Smith, 787 S.W. 2d 34, 35 (Tenn. Crim. App. 1989) perm. app denied and State v. Baker, 966 S.W.2d 429, 432 (Tenn. Crim. App. 1997) no perm. app. filed, later partially reversed on other grounds.
In Smith, the trial court found that an arrest for DUI was unlawful because the misdemeanor offense had not been committed in the presence of the officer. Smith was arrested while sitting in a vehicle parked in the emergency lane of a state highway, with the engine running and lights on at 12:48am. Unlike in the Childs case, the Court of Criminal Appeals found that Mr. Smith had committed the offense in the presence of the officer, so the arrest itself was held to be lawful. Therefore, the language of the Smith opinion relative to the remedy for an unlawful arrest is dicta.
The second case cited by the Childs court is State v. Baker, 966 S.W. 2d 429 (Tenn. Crim. App. 1997), decided eight years after the Smith case. The Baker decision cited the dicta from Smith concerning the remedy for an unlawful arrest not requiring the dismissal of the indictment. Ms. Baker had claimed that her arrest was illegally pretextual. This language was also dicta in the Baker case because the intermediate court found, as had the Baker trial court, that the misdemeanor arrest of Ms. Baker was lawful. In the case of Ms. Baker this was because, subjective reasons notwithstanding, there was an objective basis for believing that a traffic violation had occurred which supported a vehicle stop leading to an arrest. Both Smith and Baker were decided following a determination by the appellate court that the arrests were lawful, not based on the remedy for an unlawful arrest. An unreported case, not cited by the Childs decision, contains similar language. State v. Ochab, 2016 WL 6247429 (Tenn. Crim. App. 2016). There appears to be no modern decision from the Tennessee Supreme Court which clearly speaks to this issue.
Interestingly, the decision of the Court of Criminal Appeals in Childs does not say whether the arrest of Ms. Childs was or was not lawful. It only holds that since the trial judge found that the arrest was unlawful, the remedy was the suppression of evidence, not the dismissal of the indictment.
While not pertinent to Ms. Childs, what then happens when there is no evidence that derives from the unlawful arrest? Without citing any authority, the Ochab decision says this: (1) “When no evidence emanates from an illegal arrest, the arrest is essentially inconsequential in the criminal justice arena.”; and (2) an officer can testify “…in any subsequent trial about the defendant’s behavior prior to her arrest, even assuming that the arrest was invalid.” Ochab, pg. 4. So, according to the Court of Criminal Appeals, the only remedy for the person who is unlawfully arrested is a civil suit for damages.
Neither the trial judge nor the Court of Criminal Appeals dealt with the possibility that the facts of Ms. Childs’ case presented a “breach of the peace threatened in the officer’s presence” for which a warrantless arrest is lawful. T.C.A. 40-7-103(a)(1). The arresting officer did not assert that she had breached the peace or threatened to do so. Probably, the prosecuting attorney, in the trial court, did not pursue that theory of the case.
The Tennessee Supreme Court wrote at some length on the meaning of the phrase in State ex rel. Thompson v. Reichman, 135 Tenn. 685 (1916). There, the court strongly suggested that every breach of the criminal law represents a “breach of the peace”, at least as the phrase was understood in 1916. The Court based this determination, in part, on Article 6, Section 12 of the Tennessee Constitution which says that all indictments shall include the phrase “against the peace and dignity of the state.” Accordingly, the Court said that playing a baseball game or attending a movie on Sunday, then prohibited by law, could be a breach of the peace.
The Childs decision leaves unanswered factual and legal questions on remand. For example: (1) What is to be made of the concession by Deputy Pierce, from the first evidentiary hearing, that he did not see Ms. Childs in physical control of a motor vehicle? Perhaps, what was meant by the officer is that he did not see her in control of a motor vehicle on a public road or other public location, because clearly, she was the only occupant of the vehicle, sitting in the drivers’ seat of the vehicle with the engine running. That might constitute the “physical control” required by the Tennessee DUI statute found at T.C.A. 55-10-401. Plus, she admitted to driving on a public road; (2) Will there be testimony, if there is a trial, by an expert extrapolating the known BAC backwards about two hours when she seems to have admitted driving to the scene of the arrest(?); (3) However, if the arrest was unlawful, it seems that Ms. Childs may exclude the results of the toxicology report and any reference to it unless she opens up the area through her own testimony. (Decision time for defense counsel.); (4) If the arrest was unlawful, then inculpatory statements made by Ms. Childs before being taken into actual custody, but in response to questioning by the Deputy, or his observations, during what may have been the performance of a community caretaking function, present a fertile field for inquiry.
Perhaps there will be another Childs opinion, or more. Or perhaps, as is often the case, a negotiated settlement will forestall that opportunity.
