# FILED September 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF CRIMINAL APPEALS

AT NASHVILLE

STATE OF TEN

NESSEE ) C.C.A. NO. 01C01-9610-CR-00432 ) APPELLANT ) SUMNER CO UNTY ) VS. ) Hon. J ane Wh eatcraft ) Judge BOBBY CRUTC HER ) ) APPEL LEE ) (Suppression of Search)

FOR THE AP

PELLANT: FOR THE AP PELLEE: JOHN KNOX WALKUP BRYCE C. RUTH, JR. Attorney Gene

ral & Reporter Attorney at L aw P.O. Box 68 3210 Hig hway 31 West KAREN M. YACUZZO White House, Tennessee 37188 Assistant Attorney Gene

ral 450 James Robertson Parkway Nashville, Tennessee 37243 DEE GAY Assistant District Attorney 113 East Main Street Gallatin, Tennessee 37066

OPINION FILED:_________________

AFFIRMED:

JOE H. WALK

ER Sp. JUDGEOPINION

This is an a

ppeal by the State of Tenne ssee pur suant to Te nnessee Rule of Ap

pellate Procedu re 9 fro m an orde

r of the tr ial cour t grant ing the d efenda nt’s motion

to suppre ss certa

in evidence obtained as a result of a sear ch.

Factua l Background Officer Moniz of the Gallatin Police Department was on routine traf fic patrol when he observed three motorcy

cles pulling away

from a traffic light at a high r ate of speed. He activated the blue lights and two of the motorcycles pulled to the side of the road. The driver of the third motorcycle looked ba

ck at the officer, then accele rated at an even higher ra te of speed. The office r pursue d, and re ached sp eeds in e xcess of one hundre d miles per hour. Due

to the tra ffic in the area, the officer diseng aged the blue lights and slowed his vehicle, but continued f ollowing the motorcycle a

t a greater distance. He c alled on the radio for assistance. As the officer crested a hill, he saw the motorc ycle attempt to make a sharp bend to the right, go off the road, and up a n embankment. The officer proceeded to the scene, and found the defendant crawling out of the weeds and brush on the side of the road. The motorcyc le had hit a storm drain, gone up an embankment, and wa s not in a driveable condition. The front end was completely torn up, the handle bars were twisted, and the fork was bent. It wa s laying on the e mbankment, some twenty feet from the defendant. The officer approached the de fendant who was on the ground, and was in the pr ocess of putting handcuffs on him. The defendant was moaning and complaining about being hurt in the accident. The officer cea sed handcuffing the defenda nt, and called for an ambulance. The defenda nt was tra nsported to the hosp ital by

ambulanc e, and wa s placed under ar rest aft er his releas e from the

hospital. As the defendant was being place d in the ambulance, Mr. Crook, an acquaintance of the defenda nt approa ched an d asked if

he could h

elp. The defenda nt stated t hat Mr. Cr

ook could take the gold chains that the defendant had a round his neck and keep them for him. Mr. Crook asked if he could take control of the motorcy cle that was involved in the wreck, and the defendant responded that he could. The offic ers at the scene agreed to allow Mr. Crook to takepossession of the motorcycle to remove it from the scene in a truck. The motorcy cle was approxima

tely twenty feet fr om the roa

d, and fr om the loc ation of th

e defendant. The officer testified he proceeded to inventory the motorcy cle before releasing it to Mr. Crook. As the officer inventoried the contents of the motorcy cle, he investigated a backpac k that was on the front bars, and discovered a loaded gun. On the back of the motorcy cle there was a black jacket, and the officer f ound a pill bottle in the upper left corner pocket. Upon examining

the conte nts of the pill bottle

the offic er found

severa l small bag gies wit

h a white powder inside of the baggies, whic h later tested positive for cocaine.

Warrantless Search Following an evidentiary

hearing, the trial court concluded that the of ficer did not have probable cause to search the motorcy cle, that the search was not conducted incident to a law ful custodial arrest because the defenda nt was not under custodial arrest, and that the search w as not a proper inventory

search. Deference is given to the trial c ourt to assess the credibility of the witnesses, and determine issues of fact at a hearing on a motion to suppress. The party pr evailing in the trial court is entitled to the strongest legitimate view of the evidenc e adduced at the suppression hearing as well as all reasonable and legitimate inference that may be drawn from the evidence. So lo ng as th e greate r weigh t of th e evid ence su pport s the t rial c ourt’ s find ings, thos e find ings should be upheld on apeal. State v. Odom , 928 S.W.2d 18 (Tenn. 1996). The findings of the trial judge are afforded the weight of a jury verdict and will not be disturbed on appeal unless the evidence in the recor d preponderates against the judg ment of the trial court. State v. Killebrew , 760 S.W.2d 228, 233 (Tenn.Crim.App. 1988).

The State has the burden to show that a search was c onducted within a recognized exception to the warrant requirement. State v. McClanahan , 806 S.W.2d 219, 220 (Tenn.Crim.App. 1991).

Probable Cause Search The trial court found that the police officer had no pr obable cause to believe that themotorcycle c ontained contraband. This finding is supported by the evidence, as there was no testimony by

anyone involved that ther e was probable cause to believe the motorcy cle contained any contrab and, or o ther evi dence o f a crime , to bring the sear ch within t

he automo

bile exception. See St at e v . Le ve ye , 796 S.W.2d 948 (Tenn. 1990).
Inventory Search It is permissible for police officer s to inventory the contents of a lawfully impounded vehicle without a warrant, providing the circ umstances are such as to justify the impoundment of the vehicle. Drinkar

d v. State , 584 S.W.2d 650 (1979). In this case the trial court prope rly found that the vehic le had not been impounded by the officers. In fa

ct, the defendant had consented to Mr. Crook taking posse ssion of the vehicle, and the officers had agreed to release the vehicle to Mr. Crook. One office r testified that he was not impounding the vehicle, but turning the vehicle over to Mr. Crook to be r emoved from the scene. The tria l court in a

written o rder found that Drinkard , supra , co nt rol led th e fa cts of t hi s ca se. In Drinkard , the cour

t held tha t where a driver o f a vehic le, even

though a rrested , is able to

make his or her own arran gement s for the custody of the ve hicle, th at the police shoul d permit th e action to be taken rather than impou

nd the veh

icle ag ainst the will of the d river a nd then se arch it. Just cause to arrest the driver is not, alone, enoug h; there must also be reasonable cause to take the
ve hi cl e i nt o c us to dy.

Search I ncident t o Arrest The trial court found that the defendant was not arr ested at the scene, therefore the se arch was not incident to arrest. The evidence does not preponde rate against the finding of the trial court. In fact, the of

ficer testified that the defendant was not arr ested at the scene. The defendant was cited for evading arre st, and reckless driving, five day s after the incident. He was arrested, upon rele ase fro m the hospital, for t he drug s and pisto l that wer e found r esulting from this search. Wh en an of

fi ce r h as ma de a l aw fu l c us to di al ar re st of th e o cc up an t o f a ve hi cl e, he ma y, as a contemporaneous incident of that arrest, sea rch the passenger compartment of the vehicle. New York v. Belton

453 U.S.454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). State v. Watkins , 827S.W.2d 293 (1992). In addition, a police officer ma y conduct a se arch of the passenger compartment of a vehicle incident to an arrest eve n 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). In this case, the defe

ndant was being placed in an ambulance at the time Mr. Crook approached. Mr. Crook was given pe rmission to take control of the wrecked motorcy cle. Although it is unclear from the record, the def endant may ha

ve left the scene in the ambulance at the time of the contents search of the backpac k and jacket which were with the motorcy cle. At the time the defendant was in the ambulance, and bef ore the search of the motorcy cle, the defendant had not been arrested, due to injuries. The officer testified he intended to cite the defendant for the misdemeanor offense s. The officer did not intend to maintain custody of the defendant at that time.
This court finds that the greater weig ht of the evidence supports the finding of the trial court, a nd therefore the

trial cou rt is affirmed
.

__________________________ JUDGE

CONCUR:

________________________

________________________IN THE COURT OF CRIM INAL AP

PEALS OF

TENNESSEE AT NASHVILL E

STATE OF TEN

NESSEE ) C.C.A. NO. 01C01-9610-CR-00432 ) APPELLANT ) SUMNER CO UNTY ) ) Hon. J ane Wh eatcraft VS. ) Judge ) ) (Suppression of Search) BOBBY CRUTC HER ) ) APPEL LEE )

JUDGMENT The appellee, Bobby

Crutcher, appeal as of right from a jury verdict in the Sumner Criminal Court convi cting him of suppr ession of search . Appelle e was re

present ed by Bry ce C. Ruth , Jr. The St ate of T ennes see was repres ented by the Att orney Gene ral. A fter a t horou gh review of the record, the briefs, a nd the law governing the issues prese nted for review, it is the opinion of this court that the judgment of the trial court should be affirmed. Our opinio n is here

by incorpor

ated in th is judgme nt as if se t out verb atim. IT I S, THEREFORE, ORDERED AND ADJUDGED that the judgment of the trial court be, and the same is hereby affirmed. It appearing

that the appellee is indigent, costs in this court is assessed against the State of Tennessee.

PER CURIAM JOE G. RILEY, JUDGE J. CURWOOD WITT, JUDGE JOE H . WALKER , III, Special Judge