State v. Pierson ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1998 SESSION
May 28, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. 03C01-9709-CR-00334
) SULLIVAN COUNTY
)
Appellant, ) Hon. Phyllis H. Miller, Judge
)
vs. ) (Possession of Marijuana and
) Cocaine For Resale,
) Possession of Drug Para-
JACK EDWARD PIERSON, ) phernalia, Driving On Revoked
) License, Misuse of Vehicle
) Registration)
Appellee. ) No. S39583
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP THOMAS McKINNEY
Attorney General & Reporter 222 E. Center Street
Kingsport, TN 37660
ELLEN H. POLLACK
Assistant Attorney General
Cordell Hull Building - 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243
H. GREELEY WELLS JR.
District Attorney General
EDWARD WILSON
Assistant District Attorney
P.O. Box 526
Blountville, TN 37617
OPINION FILED:_______________
AFFIRMED
CORNELIA A. CLARK
Special Judge
OPINION
The State appeals the trial court’s grant of defendant’s motion to
suppress evidence seized based on an invalid warrantless search. The
judgment of the trial court is affirmed.
On July 15, 1996, at about 6:25 p.m., the defendant was operating his
motorcycle on a public road in Kingsport, Tennessee, without having his
headlight illuminated.1 Trooper Paul Mooneyham of the Tennessee Highway
Patrol was traveling on the same road in the opposite direction. As the two
vehicles approached each other, Trooper Mooneyham flashed his lights or
pointed his finger toward defendant’s motorcycle to indicate the problem.
Defendant did not understand the trooper’s signal and did not initially activate
his headlight. The defendant turned off onto another street. The trooper made
a turn, traveled down a parallel street, and stopped the defendant.
During his initial investigation after the stop, Trooper Mooneyham
learned that although the defendant had a Virginia driver’s license, his
Tennessee driver’s license had been revoked. Trooper Mooneyham also
discovered that the motor vehicle license tag on the motorcycle was registered
not to that vehicle, but to another vehicle belonging to the defendant. Trooper
Mooneyham placed the defendant in the front seat of his police car and
advised him that he was going to issue him citations for the light violation, the
improper tag registration, and for the more serious offense of driving on a
revoked license. Trooper Mooneyham did not place the defendant under
custodial arrest. Before starting his paperwork, however, the officer advised
the defendant that he was going to “... look and see what you’ve got in your
motorcycle.” The officer directed the defendant to remove the saddlebags on
1
This court is unable from the record to determine precisely what statute
Trooper Mooneyham believed the defendant to be violating when he first observed him.
During his testimony he made no direct reference to a statute number. The citation
itself was not included in the record. Defendant was not ultimately indicted for any
headlight violation. The State argues, and the court presumes, that the trooper’s
reference was to Tenn. Code Ann. §55-8-164(b), which requires motorcycle headlamps
to be illuminated.
2
his motorcycle and to remove the contents from the bag. From inside the
saddlebag the defendant removed a black leather purse, which he initially
placed behind his back. The officer demanded the bag, and found that it
contained cocaine, marijuana, and drug paraphernalia. The officer testified
that he believed the search was incident to a valid arrest, because he could
have arrested the defendant for driving on a revoked license even though he
did not.
Defendant does not question the legality of the initial stop made by the
trooper based on his observation that the defendant operated a motor vehicle
on a public roadway without an illuminated headlight. Defendant also
concedes that after the stop was made, the trooper learned that defendant was
in violation of two other code sections: Tenn. Code Ann. §55-4-129 (a)
prohibiting improper vehicle registration, and Tenn. Code Ann. §55-50-504(a)(1), prohibiting him from driving a motor vehicle on a public roadway at a
time when his privilege to do so in Tennessee had been revoked. He
questions only the right of the trooper to conduct a search of his saddlebags
when there was no custodial arrest and no need to inventory the contents.
When a police officer makes a warrantless search, the State has the
burden to show that the search was conducted within a recognized exception
to the general warrant requirement. State v. McClanahan, 806 S.W. 2d 219,
220 (Tenn. Crim. App. 1991). The State does not argue that the officer
actually had probable cause to search the motorcycle saddlebags. See State
v. Leveye, 796 S.W. 2d 948, 951 (Tenn. 1990). Neither does the State argue
that the search in question was part of an inventory of the contents a lawfully
impounded vehicle. See Drinkard v. State, 584 S.W. 2d 650 (1979). Instead,
the State asserts only that the search was incident to a lawful custodial arrest.
3
When an officer has made a lawful custodial arrest of the occupant of a
vehicle, he may, as a contemporaneous incident of that arrest, search the
passenger compartment of the automobile. New York v. Belton, 453 U.S. 454,
101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); State v. Watkins, 827 S.W. 2d 293,
295-96 (Tenn. 1992). In addition, a police officer may conduct a search of the
passenger compartment of a vehicle incident to a custodial arrest even when
the arrested person is neutralized in the backseat of a squad car. State v.
Reed, 634 S.W. 2d 665, 666 (Tenn. Crim. App. 1982). The sole issue in this
case concerns whether the detainment in question was a “custodial” arrest.
Tenn. Code Ann. §40-7-118(b)(1) requires a law enforcement officer
arresting someone for certain misdemeanors committed in his presence to
issue a citation in lieu of continued custody. §40-7-118(b)(3)(C) gives the
officer the discretion actually to make a custodial arrest for driving on a
revoked or suspended license. Based on the facts presented to him, Trooper
Mooneyham had the discretion to make a custodial arrest of the defendant.
Had he done so, he would have had the right to conduct a reasonable search
incident to arrest, and our inquiry in this court would be the reasonableness of
the search conducted. The State argues that the custodial arrest was effected
when the defendant was asked to sit in the front seat of the patrol car while the
citations were being issued. However, Trooper Mooneyham conceded in his
testimony that he did not arrest or handcuff the defendant until after the drugs
were found in the saddlebags.
The trial court, in its detailed findings of fact, agreed with the arguments
made by defendant, and granted the motion to suppress. After careful review
of the record, we conclude that the evidence does not preponderate against
4
the trial court’s finding that there was no custodial arrest and, therefore, that no
exception to the warrant requirement was shown. We affirm the judgment of
the trial court.
__________________________
CORNELIA A. CLARK
SPECIAL JUDGE
CONCUR:
____________________________
JOHN H. PEAY
JUDGE
____________________________
PAUL G. SUMMERS
JUDGE
5
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1998 SESSION
STATE OF TENNESSEE, ) C.C.A. 03C01-9709-CR-00334
) SULLIVAN COUNTY
)
Appellant, ) Hon. Phyllis H. Miller, Judge
)
vs. ) (Possession of Marijuana and
) Cocaine For Resale,
) Possession of Drug Para-
JACK EDWARD PIERSON, ) phernalia, Driving On Revoked
) License, Misuse of Vehicle
) Registration)
Appellee. ) No. S39583
JUDGMENT
Came the appellant, the State of Tennessee, and also came Jack
Edward Pierson, by counsel and this case was heard on the record on appeal
from the Circuit Court of Sullivan County; and upon consideration thereof, this
court is of the opinion that there is no reversible error in the judgment of the
trial court.
Our opinion is hereby incorporated in this judgment as if set out
verbatim.
It is, therefore, ordered and adjudged by this court that the judgment of
the trial court is AFFIRMED, and the case is remanded to the Circuit Court of
Sullivan County for execution of the judgment of that court and for collection of
costs accrued below.
Costs of this appeal will be paid by the appellant, the State of
Tennessee for which let execution issue.
PER CURIAM
John H. Peay, Judge
Paul G. Summers, Judge
Cornelia A. Clark, Special Judge