IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 27, 2015

STATE OF TENNESSEE v. NOLAN EXCELL PIPPEN

Appeal from the Circuit Court for Marshall County

No. 14CR12 Forest A. Durard, Jr., Judge

No. M2015-00828-CCA-R3-CD – Filed January 28, 2016

Following a jury trial, the Defendant, Nolan Excell Pippen, was convicted of public 

intoxication, a Class C misdemeanor; and simple possession of marijuana, third or 

subsequent offense, a Class E felony. See Tenn. Code Ann. §§ 39-17-310, -418. The 

trial court imposed a total effective sentence of two years‟ incarceration. On appeal, the 

Defendant contends (1) that the evidence was insufficient to support his conviction for 

public intoxication; and (2) that the trial court erred in denying his motion to suppress the 

marijuana found in his pocket during a search incident to his arrest for public 

intoxication.1 Following our review, we conclude that the evidence was insufficient to 

sustain the Defendant‟s conviction for public intoxication and that the trial court erred in 

denying the Defendant‟s suppression motion.2 Accordingly, we reverse the judgments of 

the trial court and dismiss the charges against the Defendant. 

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed; 

Case Dismissed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, J., joined. JOHN EVERETT WILLIAMS, J., filed a separate opinion 

concurring in part and dissenting in part.

Michael Auffinger, Smithville, Tennessee, for the appellant, Nolan Excell Pippen.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; 

Robert James Carter, District Attorney General; and Weakley E. Barnard, Assistant 

District Attorney General, for the appellee, State of Tennessee.

 

1

For the purpose of clarity, the issues have been reordered and renumbered from how they appear in the 

Defendant‟s appellate brief.

2

In his brief, the Defendant also argued that the trial court erred in setting the length of his sentence for 

the simple possession offense. However, having reversed the Defendant‟s convictions, we need not 

address the sentencing issue.
-2-

OPINION

FACTUAL BACKGROUND

Officer Charles Brannon of the Lewisburg Police Department (LPD) testified at a 

pretrial suppression hearing. Officer Brannon testified that at approximately 8:04 p.m. on 

December 12, 2013, he was dispatched to the Martin Street Apartments on a report “that 

there was fighting in the parking lot and possibly intoxicated individuals.” When he 

arrived at the apartment complex, another LPD officer, Ben Fender, was in the parking 

lot and was speaking to the Defendant. Officer Brannon testified that he approached the 

two men and that the Defendant appeared intoxicated. Officer Brannon explained that he 

could smell “an alcoholic beverage on [the Defendant‟s] breath” and that the Defendant 

“was unsteady on his feet.” 

Officer Brannon testified that the Defendant had stated that he had been involved 

in “an altercation” with two other people, Michael Crowder and Shelly Weir. According 

to Officer Brannon, the Defendant stated that the incident started in their apartment and 

spilled out into the parking lot. Officer Brannon testified that he believed Ms. Weir had 

fallen down during the altercation but admitted that he was “not exactly clear [on] the 

whole story.” The Defendant then pointed out that Mr. Crowder and Ms. Weir were on 

the other side of the parking lot. In addition to Mr. Crowder and Ms. Weir, Officer 

Brannon recalled that the Defendant‟s “wife had arrived on the scene in a car” and that

there were “two individuals over on the cross way.”

Based on this, Officer Brannon concluded that the Defendant was “a nuisance to 

others” and “a danger to himself and others.” Officer Brannon arrested the Defendant for 

public intoxication after his sergeant arrived “and investigated what [they] needed to do 

for the case.” Officer Brannon testified that he “advised [the Defendant that he] was 

going to do a pat down of his body for weapons.” Officer Brannon searched the 

Defendant and felt something hard in the left back pocket of the Defendant‟s jeans, which 

Officer Brannon “thought at that time was a knife.” Officer Brannon asked the 

Defendant what was in the pocket, and the Defendant told him it was a cell phone and “a 

sandwich bag.” Officer Brannon testified that he pulled a cellular phone and “a bag that 

had [a] green leafy substance . . . [he] believed to be marijuana” out of the Defendant‟s 

pocket. 

The trial court issued a written order denying the Defendant‟s suppression motion. 

The trial court concluded that the warrantless search of the Defendant was a valid search 

incident to arrest. The trial court found that there was probable cause that the Defendant 

had committed the offense of public intoxication by being a danger to himself or others. 

Specifically, the trial court found that this was true in light of the fact that the police had 
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received a call “regarding a fight, coupled with the [fact that the] warring parties [were] 

still in close proximity to each other.” 

At trial, Officer Fender testified that he was the first officer to arrive at the 

apartment complex. Officer Fender recalled that he had been dispatched there on a call 

about “a lady possibly laying [sic] on the ground” and “some possible public 

intoxication.” Officer Fender testified that the Defendant was in the parking lot when he 

arrived. According to Officer Fender, the Defendant smelled of alcohol and was 

“unsteady on his feet.” Officer Fender explained that the Defendant “was staggering a 

little bit” and “making several steps trying to keep his balance.”

Officer Fender testified that the Defendant stated that he had been “involved in an 

altercation with another subject” and then pointed out Mr. Crowder and Ms. Weir on the 

other side of the parking lot. Officer Fender admitted that he did not see Mr. Crowder 

and Ms. Weir until after the Defendant pointed them out to him. Officer Fender testified 

that the Defendant “seemed to be upset” and admitted that “at that time, [he] believed 

[the Defendant] was the complainant that called and was the one who was complaining 

about the incident.” 

Officer Fender testified that he left the Defendant with Officer Brannon and went 

across the parking lot to speak to Mr. Crowder and Ms. Weir. Officer Fender recalled 

that Mr. Crowder and Ms. Weir could not speak or stand up, that they smelled of alcohol, 

and that they “were hugging, kissing, [and] falling.” Officer Fender arrested them for 

public intoxication. Officer Fender recalled that he put one of them in his patrol car and 

the other in the patrol car of a third officer who had arrived after Officer Brannon. 

Officer Fender testified that before he placed Mr. Crowder in the patrol car, he searched 

Mr. Crowder and discovered a pack of cigarettes that contained “a small bag” of 

marijuana. 

Officer Fender testified that besides the officers, the Defendant, Mr. Crowder, and 

Ms. Weir, there was no one else in the parking lot except for “a lady in a white car” who 

pulled up as he was “starting to leave.” Officer Fender admitted that there was no 

evidence of a fight in the parking lot, that there was no apparent damage to any property, 

and that “[e]verything appeared to be okay” when he arrived. Officer Fender further 

admitted that he “was unable to determine exactly what happened that night” due to “the 

level of intoxication of” Mr. Crowder and Ms. Weir. 

Officer Brannon testified at trial consistently with his testimony from the pretrial 

suppression hearing. In addition, Officer Brannon testified that when he arrived at the

parking lot, he did not see a woman lying on the ground but that he saw “some people off 

in the distance at the other end” of the parking lot, which he later learned were Mr. 

Crowder and Ms. Weir. Officer Brannon estimated that Mr. Crowder and Ms. Weir were 
-4-

approximately fifty to one hundred yards away from the Defendant. Officer Brannon 

also recalled that the Defendant‟s girlfriend was in a car “parked near where [the 

Defendant] was at” when he arrived.

Officer Brannon testified that the Defendant admitted that “he had consumed some 

alcohol” earlier that night. Officer Brannon testified again about the Defendant stating 

that “he was involved in an altercation with other individuals that were in the parking 

lot.” Officer Brannon further testified that he believed the altercation “was verbal” and 

that he did not know if it ever became physical. Officer Brannon testified that he “later” 

learned that Ms. Weir had fallen to the ground trying to separate Mr. Crowder and the 

Defendant. However, Officer Brannon admitted that he did not “personally witness any 

sort of altercation.” 

Officer Brannon testified that he felt the Defendant was a danger to himself, to 

others, and to “the property there.” Officer Brannon further testified that he believed the 

Defendant was an annoyance to others and that he knew that “before [he] even got there” 

because there had been a complaint “stating that something was happening in the parking 

lot.” Officer Brannon also cited the fact that he saw two people approximately fifteen to 

twenty feet away “looking” through an open doorway “in the direction” of the Defendant 

and the officers as evidence that the Defendant was being an annoyance to others. 

Subsequent forensic testing by the Tennessee Bureau of Investigation revealed that 

the green leafy substance found in the plastic bag taken from the Defendant‟s pocket was 

.09 grams of marijuana.

Debra Burns testified that she had “been common-law married” to the Defendant 

for over twenty-five years.3 Ms. Burns testified that on December 12, 2013, she and a 

friend had just left an Alcoholics Anonymous meeting when they drove by the Martin 

Street Apartments and saw what they believed was a person lain out in the parking lot. 

Ms. Burns claimed that she drove closer to investigate and found Ms. Weir 

“unresponsive” with her head lying on an urn containing “the ashes of . . . [Mr.] 

Crowder‟s mother.” 

Ms. Burns testified that she called the Defendant, whose apartment was nearby, 

and that he helped Ms. Weir to “her father‟s apartment . . . on the other side of the 

driveway.” Ms. Burns claimed that after he helped Ms. Weir, the Defendant came back 

and talked to her and her friend “for a few minutes.” Ms. Burns testified that she did not 

see “any altercation that night between anybody,” that the Defendant “appeared fine,” 

and that he did not seem intoxicated to her. Ms. Burns further testified that the Defendant 

 

3

It is well established that marriage in Tennessee is controlled by statute and that common-law marriages 

are not recognized in this state. See Martin v. Coleman, 19 S.W.3d 757, 760 (Tenn. 2000). 
-5-

was walking back to his apartment when the police pulled into the parking lot. Ms. Burns 

admitted that she did not speak to the police that night and that she “bump[ed]” her car 

into a pole as she was leaving the parking lot.

After Ms. Burns‟s testimony, the trial court questioned the Defendant about his 

decision to testify at trial.4 The Defendant then testified for the jury, explaining that 

several days prior to December 12, 2013, he was in his apartment reading the Bible when 

Mr. Crowder came to his door. The Defendant claimed that Mr. Crowder had stated that 

Ms. Weir had “kicked him out” and that he had nowhere to stay. The Defendant testified 

that he agreed to let Mr. Crowder stay at his apartment for a few days. 

The Defendant claimed that on December 12, 2013, he came home to his 

apartment to find Mr. Crowder “there drinking.” The Defendant further claimed that he 

then went to the bathroom, and when he returned, Mr. Crowder had “drugs on the table.” 

The Defendant testified that he started “kind of bum-rushing” Mr. Crowder and “told him 

to get his s--t and get out.” The Defendant recalled seeing Mr. Crowder place the drugs 

“into a cigarette pack” as he was leaving. According to the Defendant, after Mr. Crowder 

left the Defendant‟s apartment, Ms. Weir helped him “move his stuff down to [Ms. 

Weir‟s] daddy‟s house.”

The Defendant claimed that, later that night, he was “nice and warm” in his 

apartment “enjoying a beer” when he received a phone call from Ms. Burns about a 

woman lying “out in the yard.” According to the Defendant, Ms. Burns told him that the 

woman was “two feet from [his] door,” so he went outside to check on her. The 

Defendant testified that he found Ms. Weir lying outside. The Defendant opined that Ms. 

Weir “was knocked out pretty good” because she had fallen into a hole and “hit her head 

on [an] urn” containing Mr. Crowder‟s mother‟s ashes. The Defendant explained that it 

was not unusual for Ms. Weir to being carrying the urn that night because Mr. Crowder 

carried it “around with him . . . . [w]herever he [went]” so he could take “his mother with 

him.” 

The Defendant claimed that he carried Ms. Weir “to her daddy‟s house” and left 

“her down there.” The Defendant testified that he then spoke to Ms. Burns because she 

“came over . . . to give [him] . . . a Christmas card.” The Defendant denied that there was 

any sort of altercation and opined that the police were only “called because [Ms. Burns]

had bumped into a little pole.” The Defendant denied being intoxicated and denied 

 

4

It appears that the trial court was conducting a hearing pursuant to Momon v. State, 18 S.W.3d 152 

(Tenn. 1999), which outlined a prophylactic procedure designed to insure that a defendant‟s waiver of his 

right to testify is voluntary, knowing, and intelligent. See Mobley v. State, 397 S.W.3d 70, 90-91 (Tenn.

2013). However, said procedure was not required prior to the Defendant‟s testimony as our supreme 

court has “respectfully decline[d] to extend the reach of the prophylactic procedure in Momon to 

instances in which a criminal defendant elects to testify.” Id. at 90.
-6-

telling the police officers that there had been an altercation. The Defendant claimed that 

he told the officers everything that he had testified to at trial about Mr. Crowder and Ms. 

Weir.

With respect to the marijuana, the Defendant claimed that as he was leaving his 

apartment, he saw an empty bag left by Mr. Crowder on the floor. The Defendant 

insisted that he did not realize there was marijuana in the bag and that he thought it was 

empty. The Defendant claimed that he believed the bag was trash, so he picked it up and 

put it in his back pocket because he was going to throw it away in the dumpster while he 

was outside. The Defendant further claimed that he told Officer Brannon that the bag 

was trash and not his.

Based upon the foregoing, the jury convicted the Defendant of public intoxication 

on the specific grounds that the Defendant had “unreasonably annoy[ed] people in the 

vicinity” and simple possession of marijuana. Thereafter, the State presented evidence 

that the Defendant had three prior convictions for simple possession. The jury then 

convicted the Defendant of simple possession of marijuana, third or subsequent offense. 

At the sentencing hearing, the trial court sentenced the Defendant to thirty days for the 

public intoxication conviction and two years for the felony simple possession conviction. 

The trial court ordered the sentences to be served concurrently for a total effective 

sentence of two years‟ incarceration. This timely appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to support his 

conviction for public intoxication. The Defendant argues that the State failed to prove 

that he was an unreasonable annoyance to people in the vicinity. The Defendant further 

argues that “the record contains zero statements or testimony that would establish the fact 

that” anyone was annoyed by his behavior that night. The State responds that the 

evidence was sufficient to sustain the Defendant‟s conviction because he admitted to 

being in an altercation with Mr. Crowder and Ms. Weir along with “the fact that two 

persons called [the] police about [a] disturbance” and that there was a “collection of 

onlookers at the complex.”

An appellate court‟s standard of review when the defendant questions the 

sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 

319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury 

has resolved all conflicts in the testimony and drawn all reasonable inferences from the 
-7-

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); 

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness 

credibility, conflicts in testimony, and the weight and value to be given to evidence were 

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a 

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the 

evidence is insufficient to support the jury‟s verdict.” Bland, 958 S.W.2d at 659; State v. 

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely 

upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d 

125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State‟s 

proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 

1983). Put another way, the State is not burdened with “an affirmative duty to rule out 

every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 

326.

The foregoing standard “applies to findings of guilt based upon direct evidence, 

circumstantial evidence, or a combination of [both] direct and circumstantial evidence.” 

State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme 

court has held that circumstantial evidence is as probative as direct evidence. State v. 

Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the supreme court rejected 

the previous standard which “required the State to prove facts and circumstances so 

strong and cogent as to exclude every other reasonable hypothesis save the guilt of the 

defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v. Crawford, 

470 S.W.2d 610, 612 (Tenn. 1971)) (internal quotation marks omitted).

Instead, “direct and circumstantial evidence should be treated the same when 

weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason 

for this is because with both direct and circumstantial evidence, “a jury is asked to weigh 

the chances that the evidence correctly points to guilt against the possibility of inaccuracy 

or ambiguous inference.” Id. at 380 (quoting Holland v. United States, 348 U.S. 121, 140 

(1954)). To that end, the duty of this court “on appeal of a conviction is not to 

contemplate all plausible inferences in the [d]efendant‟s favor, but to draw all reasonable 

inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 

(Tenn. 2011).

Public intoxication is committed when a person “appears in a public place under 

the influence of a controlled substance, controlled substance analogue or any other 

intoxicating substance to the degree that: (1) The offender may be endangered; (2) There 

is endangerment to other persons or property; or (3) The offender unreasonably annoys 

people in the vicinity.” Tenn. Code Ann. § 39-17-310(a). Here, the jury found the 

Defendant guilty under subsection (a)(3), that he was intoxicated to the degree that he 
-8-

“unreasonably annoy[ed] people in the vicinity.” The Defendant does not dispute the 

jury‟s finding that he was intoxicated in a public place.

In order to sustain a conviction for public intoxication under subsection (a)(3), 

“[t]he statute requires that the defendant, in fact, „unreasonably annoy[] people in the 

vicinity,‟ not that his conduct could have annoyed others.” State v. Wilson, 990 S.W.2d 

726, 729 (Tenn. Crim. App. 1998) (brackets in original) (emphasis added). To that end, a 

defendant “arguing loudly outside his residence after midnight” could not be convicted of 

public intoxication under subsection (a)(3) when there was “no proof that he actually 

annoyed anyone else in the vicinity.” Id. “That someone in the area could have heard the 

defendant does not establish that he unreasonably annoyed others.” Id.; see also United 

States v. Ernest Reagan, No. 3:07-CR-98, 2007 WL 4208821, at *15 (E.D. Tenn. Nov. 

26, 2007) (citing Wilson and holding that officer‟s belief that a vehicle‟s “loud stereo was 

annoying people” and that a passenger in the vehicle was annoyed “by [a] potential 

domestic dispute [the officer] believed he had heard” did not constitute a violation of 

subsection (a)(3) because there was no evidence the defendant “actually annoyed people 

in the vicinity”). 

Here, the Defendant was found alone in the parking lot of his apartment complex. 

Mr. Crowder and Ms. Weir were approximately fifty to one hundred yards away from the 

Defendant, and Officer Fender testified that he did not see them until the Defendant 

pointed them out to him. Officer Fender also testified that when he arrived at the parking 

lot, there was no evidence of a physical altercation or damage to any property and that 

“[e]verything appeared to be okay.” The Defendant allegedly told the responding 

officers that he had been involved in an altercation with Mr. Crowder and Ms. Weir, but 

neither Officer Fender nor Officer Brannon witnessed “any sort of altercation.” 

Furthermore, Mr. Crowder and Ms. Weir were too intoxicated to provide the officers with 

an explanation of what had occurred, and Officer Fender admitted that he “was unable to 

determine exactly what happened that night.”

The State argues that “the fact that two persons called [the] police about [a] 

disturbance” was sufficient to satisfy subsection (a)(3). However, there was no evidence 

to establish who had called the police, and Officer Fender and Officer Brannon‟s 

testimony conflicted as to exactly what the complaints were about. In fact, Officer 

Fender testified that he initially believed that the Defendant “was the complainant that 

called and was the one who was complaining about the incident” because the Defendant 

“seemed to be upset” about the alleged altercation. The Defendant claimed the police 

had been called because Ms. Burns “had bumped into a little pole” while backing out of 

the parking lot. None of this amounts to evidence that the Defendant was intoxicated to a 

degree that his behavior unreasonably annoyed people in his vicinity. 
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Likewise, the fact that there was a “collection of onlookers at the complex” was 

not sufficient to justify a conviction for public intoxication under subsection (a)(3). 

There was no testimony presented at trial from any of the alleged “onlookers” or 

evidence to establish that the Defendant‟s behavior had unreasonably annoyed them. The 

fact that “onlookers” gathered during the arrest of the Defendant likely had more to do 

with the fact that the LPD responded to a call about “some possible public intoxication” 

in the parking lot of an apartment complex with, at a minimum, four officers and at least 

three patrol cars rather than it did with the behavior of the Defendant. Accordingly, we 

conclude that the State failed to prove that the Defendant, in fact, unreasonably annoyed 

people in his vicinity. Therefore, the Defendant‟s conviction for public intoxication is 

reversed and dismissed.

II. Motion to Suppress

The Defendant contends that the trial court erred in denying his motion to suppress 

the marijuana found in his pocket during a search incident to his arrest for public 

intoxication. In his brief, the Defendant couches this argument as a challenge to the 

sufficiency of the evidence. However, the Defendant argues that the arresting officers 

lacked probable cause to arrest him for public intoxication; therefore, the warrantless 

search of the Defendant was not justified as a search incident to arrest, and the marijuana 

seized should have been suppressed. The State responds that the officers had probable 

cause to suspect that the Defendant had committed the offense of public intoxication.

On appellate review of suppression issues, the prevailing party “is entitled to the 

strongest legitimate view of the evidence . . . as well as all reasonable and legitimate 

inferences that may be drawn from that evidence.” State v. Talley, 307 S.W.3d 723, 729 

(Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Questions about 

“the assessment of witness credibility, the weight and value of evidence, and the 

resolution of evidentiary conflicts are entrusted to the trial court.” State v. Meeks, 262 

S.W.3d 710, 722 (Tenn. 2008). When the trial court “makes findings of fact in the court 

of ruling upon a motion to suppress, those findings are binding on appeal unless the 

evidence in the record preponderates against them.” Id. Additionally, a trial court‟s 

conclusions of law along with its application of the law to the facts are reviewed de novo 

without any presumption of correctness. Id.

Both the federal and state constitutions offer protection from unreasonable 

searches and seizures with the general rule being “that a warrantless search or seizure is 

presumed unreasonable and any evidence discovered subject to suppression.” Talley, 

307 S.W.3d at 729 (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7). As has often 

been repeated, “the most basic constitutional rule in this area is that „searches conducted 

outside the judicial process, without prior approval by judge or magistrate, are per se 

unreasonable under the Fourth Amendment – subject to only a few specifically 
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established and well delineated exceptions.‟” Coolidge v. New Hampshire, 403 U.S. 443, 

454-55 (1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see also State 

v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007).

Such exceptions to the warrant requirement include, “searches incident to arrest, 

plain view, exigent circumstances, and others, such as the consent to search.” Talley, 307 

S.W.3d at 729. The constitutional protections outlined above “are designed to safeguard 

the privacy and security of individuals against arbitrary invasions of government 

officials.” Id. (quoting State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998)) (internal 

quotation marks omitted). Therefore, “a trial court necessarily indulges the presumption 

that a warrantless search or seizure is unreasonable, and the burden is on the State to 

demonstrate that one of the exceptions to the warrant requirement applied at the time of 

the search or seizure. State v. Bobby Killion, No. E2008-01350-CCA-R3-CD, 2009 WL 

1748959, at *14 (Tenn. Crim. App. June 22, 2009).

To justify a warrantless search incident to an arrest, “four conditions must be 

met:”

(1) the arresting officer must have probable cause to believe that the 

defendant had engaged or was engaging in illegal activity; (2) the probable 

cause must attach to an offense for which a full custodial arrest is permitted 

– i.e., there must be statutory grounds for a warrantless arrest; (3) the arrest 

must be consummated either prior to or contemporaneously with the search; 

and (4) the search must be incident to, not the cause of, the arrest.

State v. Richards, 286 S.W.3d 873, 878 (Tenn. 2009) (internal citations omitted). “[A] 

search incident to arrest is supported by probable cause only if the facts, circumstances, 

and reliable information known to the officers will warrant a prudent person‟s belief that 

the suspect has committed an offense.” Id. at 879. 

The trial court denied the Defendant‟s suppression motion on the grounds that 

there was probable cause that the Defendant was intoxicated to an extent that he was a 

danger to himself or others. The trial court based this conclusion on its finding of fact 

that the police had received a call “regarding a fight, coupled with the [fact that the] 

warring parties [were] still in close proximity to each other.” However, the record 

preponderates against that finding. 

Officer Fender testified that he was dispatched to the apartment complex regarding 

“a lady possibly laying [sic] on the ground” and “some possible public intoxication.” 

Officer Brannon estimated that Mr. Crowder and Ms. Weir were fifty to one hundred 

yards away from the Defendant on the other side of the parking lot, and Officer Fender 

testified that he did not even see Mr. Crowder and Ms. Weir until the Defendant pointed 
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them out to him. Furthermore, Officer Fender testified that there was no evidence of a 

fight in the parking lot and that “[e]verything appeared to be okay” when he arrived. 

The Defendant, while exhibiting the classics signs of intoxication, was in the 

parking lot of his residence. There was no proof that the Defendant was unable to walk 

or stand, or that he was disoriented or incoherent. As such, the facts, circumstances, and 

reliable information known to the officers did not warrant a prudent person‟s belief that 

the Defendant was intoxicated to the extent that he was a danger to himself or others. Cf.

State v. Reynaldo Quintanilla, No. M2002-02440-CCA-R3-CD, 2003 WL 21145569, at 

*7 (Tenn. Crim. App. May 16, 2003) (finding probable cause to arrest the defendant for 

public intoxication because the defendant was intoxicated “to the degree that he was a 

danger to himself” when the defendant was found “„staggering‟ along a state highway,” 

“mumbling incoherently,” “had a head injury,” “admitted . . . that he had just been 

involved in an automobile accident,” and “smelled of alcohol”).

In denying the Defendant‟s motion for new trial, the trial court cited the fact that 

“this [incident] had drawn [the] attention” of “some other tenants in the apartment 

complex” as evidence that the Defendant was “being unreasonably annoying to people in 

the vicinity.” However, as discussed above, there was no proof presented at the 

suppression hearing or at trial that the Defendant‟s actions, in fact, unreasonably annoyed 

anyone in his vicinity. Given the facts discussed above regarding the sufficiency of the 

convicting evidence for the public intoxication conviction, we also conclude that officers 

lacked probable cause that the Defendant was intoxicated to the extent that he was an 

unreasonable annoyance to people in the vicinity. 

Accordingly, we conclude that the officers lacked probable cause to arrest the 

Defendant for public intoxication and that the trial court erred in denying the Defendant‟s 

motion to suppress. As the marijuana found in the Defendant‟s back pocket was the sole 

evidence supporting his conviction for simple possession, third or subsequent offense, we 

reverse and dismiss his conviction. 

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of 

the trial court are reversed and dismissed.

_________________________________ 

D. KELLY THOMAS, JR., JUDGE