State v. Henry

Decision Date23 October 2018
Docket NumberNo. E2017-01989-CCA-R3-CD,E2017-01989-CCA-R3-CD
CourtTennessee Court of Criminal Appeals

Appeal from the Criminal Court for Knox County

No. 107467

Steven Wayne Sword, Judge

The Appellant, John D. Henry, was convicted in the Knox County Criminal Court of driving under the influence (DUI) per se, fifth offense, and driving on a revoked license and received an effective two-year sentence to be served as 150 days in jail with the remainder to be served on supervised probation. On appeal, the Appellant contends that the trial court erred by refusing to grant his motions to suppress evidence because his warrantless stop did not fall under the exigent circumstances exception to the warrant requirement and because he did not voluntarily consent to his warrantless blood draw. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.

Robert W. White, Maryville, Tennessee, for the appellant, John D. Henry.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Charme P. Allen, District Attorney General; and Joe Welker and Jordan Murray, Assistant District Attorneys General, for the appellee, State of Tennessee.

I. Factual Background

In March 2016, the Knox County Grand Jury indicted the Appellant as follows: count one, DUI per se; count two, DUI; count three, driving on a revoked license; count four, DUI per se, fifth offense; and count five, DUI, fifth offense. In June 2016, the Appellant filed two motions to suppress evidence. In the first motion, he claimed that police officers unlawfully seized him without a warrant. In the second motion, he contended that the officers unlawfully obtained his blood sample.

At the January 2017 hearing on the motions to suppress, Officer Jeff Damewood of the Knoxville Police Department (KPD) testified that on the afternoon of September 20, 2014, he and Officer Adam Barnett were dispatched to "a suspicious person or maybe a sick person call" at a liquor store on West Young High Pike. The State played the call to the KPD for the trial court. At the outset of the call, the caller asked, "Is this the non-emergency line?" The dispatcher said yes, and the caller said, "Okay, I just wanted to make sure I wasn't calling something I didn't need to be." The caller identified himself as "Justin," stated that he was an employee at Southland Spirits and Wine, and said that "we have a guy that is passed out in his car back here next to our dumpster." The caller said the car was a silver Chevrolet Cavalier and reported the car's license plate number. He described the man in the car as an "older white gentlemen" wearing a hat and a lime-green shirt.

Officer Damewood testified that he arrived at the scene just prior to Officer Barnett and that he spoke with the caller and another store employee. Officer Damewood saw the car "parked at the end of the building and near the dumpster" and saw the Appellant walking from the back of the building to the Cavalier. The Appellant got into the driver's side. Officer Damewood said that Officer Barnett arrived and that "we proceeded with the stop."

On cross-examination, Officer Damewood acknowledged that he and Officer Barnett were dispatched to the scene at 5:32 p.m. and that they arrived about eleven minutes later. He and Officer Barnett approached the Cavalier at the same time, but Officer Barnett initiated the conversation with the Appellant and "handled most of this situation." Although the caller had reported that a person was "'passed out'" in the car, the Appellant obviously was not passed out when Officer Damewood saw him walking to the Cavalier. Officer Damewood acknowledged that he never saw the Appellant passed out and that he did not notice anything unusual about the Appellant's gait. He said, though, that he saw the Appellant walk "a short distance."

Officer Adam Barnett of the KPD testified that about 5:30 p.m. on September 20, 2014, he and Officer Damewood were dispatched "to a 911 call at the liquor store of a male passed out and a vehicle." When they arrived at the scene, Officer Damewood spoke with "the people who called." The officers then made contact with the Appellant, and Officer Barnett told the Appellant why they were there. Officer Barnett said that he smelled a strong odor of alcohol on the Appellant's person and that he saw beer cans in plain view in the car. He did not recall if the cans were empty or full.

Officer Barnett testified that he had the Appellant perform field sobriety tests and that the Appellant performed "[p]oorly" on the tests. Officer Barnett and the Appellant discussed a blood test, and the Appellant agreed to give blood. Officer Barnett read an implied consent form to the Appellant, and the Appellant again agreed to a blood draw.

On cross-examination, Officer Barnett testified that he and Officer Damewood arrived at the liquor store at the same time but that his patrol car was behind Officer Damewood's patrol car. The Appellant got into the Cavalier and turned on the engine as the officers pulled into the parking lot. The Appellant was sitting in the driver's seat of the Cavalier when Officer Barnett approached the car, and Officer Barnett "asked him to shut the vehicle off." Officer Barnett said he did so "for safety standpoint." The Appellant was not passed out in the car, did not appear to be sick, and turned off the engine as requested.

Officer Barnett testified that two beer cans were on the passenger side of the car and that he saw the cans "probably" within thirty seconds of telling the Appellant to turn off the engine. One can was in a bag on the passenger seat, but Officer Barnett did not remember where the second can was located. The officers later found amber-colored pill bottles in the car.

Officer Barnett testified that he arrested the Appellant and read an implied consent form to him. The Appellant consented to a blood draw, so he drove the Appellant to a hospital for the draw. En route, the Appellant revoked his consent. Officer Barnett said that he informed the Appellant "of the new mandatory blood draw law" and that "we would get a search warrant" for the blood. He also told the Appellant that the Appellant would receive "a new charge" for violating the implied consent law. At that point, the Appellant again agreed to the blood draw.

The trial court asked Officer Barnett, "Officer, the basis for the mandatory blood draw, in your opinion was what?" Officer Barnett answered, "The fact that his license had been revoked for DUI, sir." The trial court then asked, "So you felt like the law required that you take blood from him [whether he consented or not]?" Officer Barnett answered, "Yes, sir."

At the conclusion of the hearing, the parties introduced a video of the Appellant's stop, recorded from Officer Barnett's patrol car, into evidence.1 However, neither party played the video for the trial court during the suppression hearing.

In a written order, the trial court denied the motions to suppress. First, the court addressed the officers' warrantless seizure of the Appellant and found that the Appellant was seized when Officer Barnett told him to turn off the car's engine. However, the court determined that the community caretaking exception to the warrant requirement existed in this case because "the officers were responding to a third party report of a person passed out in a car" and because "[s]uch a report puts an affirmative duty on a law enforcement officer to investigate to determine if someone was in need of medical assistance." In support of the trial court's conclusion, the court noted, "It is common knowledge that officers are having to provide life-saving assistance to individuals who have overdosed on opiates multiple times a week in Knoxville." The court stated that although the officers saw the Appellant "walking on his own" when they arrived at the scene, which was "contrary to the initial report," it was reasonable for them to approach him, talk with him briefly to determine if he needed assistance, and prevent him from leaving the scene until they could make that determination. The court stated that the initial detention was minimal in that the officers only told the Appellant to turn off the car's engine, did not get him out of the car, and did not touch him. The court found that within thirty seconds of talking with the Appellant, the officers noticed an odor of alcohol coming from his person and saw beer cans in the car. The court concluded that at that point, the officers had reasonable suspicion that the Appellant was committing DUI and could detain him further to investigate their suspicions.

As to the Appellant's warrantless blood draw, the trial court found that the Appellant initially consented to the blood draw, withdrew his consent, and then changed his mind again and agreed to the blood test. The court concluded that the Appellant's blood "was validly obtained pursuant to implied consent" and, therefore, that there was no need for the court to determine whether he expressly consented to the blood draw.

After the trial court denied the Appellant's motions to suppress, the Appellant proceeded to trial. At the July 2017 bench trial, Officer Barnett testified that about 5:30 p.m. on September 20, 2014, he was dispatched to an address on West Young High Pike. He said that according to the call, "there was a possibly a person passed out in a vehicle." The State again played the call for the trial court.

Officer Barnett testified that he and his partner, Officer Damewood, arrived at the location and saw the Chevrolet Cavalier reported in the call. They got out of their patrol cars, approached the Cavalier, and made...

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