### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. JEFFREY L. HAMMONS Direct Appeal from the Criminal Court for Wilson County No. 98-0179; 98-0180; 98-0886; 98-0887 J.O. Bond, Judge

No. M1999-00756-CCA-R3-CD - Decided June 30, 2000

The state appeals the trial cou rt's order granting the defendant's motion to suppress seized contraband. The defendant was indicted for possession of marijuana with intent to sell or deliver, driving on a revoked license, felony possession of a firearm, and possession of a firearm silencer. The defendant challenged the search of his vehicle. The trial court held the search was illegal and grantedthe defendant’s motion to suppress the evidence. Upon a thorough review of the record, we find the initial searc

h to be a lawful se

arch incident to a

n arrest, and further

hold the subsequent search of t he defendant’s trunk was conduc

ted pursuant to a pr

oper inventory of

the vehic le

. Therefore, the judgment of the trial court is reversed and the case remanded for further proceedings in accordance with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Rem

anded. R ILEY , J. delivered the opinion of the court, in which W ADE , P.J. and O GLE , J. joined. Paul G. Summers, Attorney General and Reporter; Marvin E. Clem ents, Jr ., Assistant Attorney General; Tom P. Thompson, Jr., District Attorney General; and Jerry D. Hunt, A ssist ant District Attorney General, for the appellant, State of Tennessee. Hugh Green, Leb

anon, Tennessee

, for the appelle

e, Jeffrey L. Ha

mmons. OPINION FACTS At approximately 12:30 a.m. on November 23, 1997, Officer Rick Risner of the Mount Juliet Police Department was running radar on Highway 70. He clocked the defendant at 53 miles per hour in a 30 mile per hour z

one, and activat

ed his bl ue lights in an attempt to pull the vehicle over. Subsequently, the defendant pulled into a Kroger parking lot and stopped his vehicle. Risner approached

the defendant’s vehicle and asked to see his driver’s license. The defendant stated he hadnone, and the officer asked for his name. Thereafter, the officer was informed by the dispatcher that the defendant’s license had been revoked. He further learned the license plate did not match the car the defend

ant was driving, a

nd the plate was no

t registered to the

defendant.1 The transcript submitte d to this court indicates that the suppressionhearing was conducted by Judge John D. Wootten, Jr. At the con clusion of the hearing, it was discovered that Judge Wootten had a

conflict, appar

ently since he wa

s in the district atto

rney’s office a

t the time the case arose. The defendant di

d not waive disqual

ification. The fi

ndings of th

e cou rt, apparently based upon the suppression hearing, were made by Judge J. O. Bond. The record is silent as to whether all parties a

g reed that Judge Bond could rule based upon the written transcript of the suppression hearing. Ordinarily, this court would sua sponte remand for a

new hearing. How

ever, neither pa

rty alleges any error in this

regard. Furthermore, and most importantly, there appears to be no disputed material facts arising in the suppression hear ing. Accordingly,

we have electe

d to address the case on the merits. -2- It was the policy of the Mount Juliet Po lice Department

to tow a vehicle once an arrest was made, and no one was available to drive the vehicle. Vehicles were towed to privat e towing lots unless there was a decision to impound the vehicle at the police department. Prior to the removal of a vehicle from the scene, it was the policy of the department to “inventory” the vehicle. Once additional officers arrived on the scene, Risner placed the defendant under arre st for dr iving on a revoked license and called dispatch for a tow truck to remove the vehicle. Risner instructedOff

icer Gibso n to begin an “inventory” of the vehicle. During this initial search of the vehicle, officers discovered a .45 caliber pistol und er the front pass

enger seat. Officer Risner then determinedthe vehicle would be impounded. Officers then removedthe keys from the ignition of the vehicle

and opened the trunk, at which point Officer Gibson noticed a strong smell of marijuana. Officer Gibson te stified he observed a zipped, black bag; removed the bag; and discovered a ski mask, gloves, holster, .22 caliber silencer, .22 caliber and .45 caliber ammunition and marijuana. The defendant was indicted for possession of marijuana with intent to sell or deliver, driving on a revok ed license, felony possession of a firearm, and possession of a firearm silencer. He brought a motion challenging the legality of the search. Followi ng a h earing, the trial court determinedthe search was invalid and the evidence illegally seized. 1 The state n ow appeals the decision of the tr

ial court. STANDARD OF REVIEW The findings of fact made by the trial court at

the hearing on a

motion to suppress

are binding upon this Court unlessthe evidence contained in the record preponderates against them. State v. Carter , 988 S.W.2d 145, 149 (Tenn. 1999). However, this Court is not bo und b y the trial court’s conclusions of law. State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998).

ANALYSIS The State contends the trial court erred in gra nting t he def endan t’s mo tion to sup press . It-3-

claims the officers made a valid stop, arrest and search incident to an arrest. T hereafter, officers properly searched the trunk of the vehicle in an effort to inventory its contents before the vehicle was towed. We agree. A. Revoked License Indictment The motion to suppress a lleges the offi

cers did not have

probable cause

to stop and detain the defendant. It is undisputed that the vehicle was stopped due t o speeding, and the defendant’s license was revoked. The

order of suppre

ssion does not indica

te that the st

op and arrest were improper. The state’s noticeof appeal includes indictment no. 98-0179 which charges driving on a revoked license. There is no reaso n the state can not proceed to trial on that case. It is not the proper subject of a Tenn. R. App. P. 3 appeal. B. Search Incident t

o an Arrest It is uncontested that the stop of the vehicle

was legally executed. The defendant arg ues his arrest was a mere pretext to searching the vehicle. However, pursuant to Tenn. Code Ann. § 40-7- 118(b)(3)(C)

and (c)(2), Officer Risner was authorized to place the defendant under custodial arres

t for driving on a revoked license in lieu of issuing a citation. State v. Juan E. McAd ams , C.C.A. No. 01C01-9704-CR-00140, David son County (Tenn. Crim. App. filed June 11, 1998, at Nashville), perm. to app. denied

(Tenn. 1999). The defendant w as driving on a r

evoked license,

and if allowed to proceed, would c

ontinue to commit the

offense in violat ion of the statue. Thus, the arrest was proper. Once Officer Risner placed the defendant under arrest for driving on a revoked license, he hadthe authority to search the passenger compartment of the ve hicle incident to that arrest. See New York v. Belton , 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). The fact that Officers Risner and Gibson said they began “inventory ing” the defendant’s vehicle after h is arrest, rather than searching “incident to the arrest,” does not invalidate

the search. See State v. Watkins , 827 S.W.2d 293, 296 (Tenn. 1992). Furthermore, a search incident to an arrest may be conducted even when the arrest

ed person is

neutralized in the back seat of the squad car. Id. ; State v. Reed , 634 S.W.2d 665, 666 (Tenn. Crim. App. 1982). In the instant case, the search occurred after the arrest and placement of the defendant in the police car. The initial searc h was confined to t

he automobile

pas sen ger c omp art men t. A ccor din gly, the initial search yielding the .45 caliber pistol

was not an inventor

y search b ut a search incid

ent to a lawful arrest. The police officers’ characterization of their actions is not controlling of the type of search conducted. Watkins , 827 S.W.2d at 296. The seizure of the .45 caliber pistol was proper.
C. Inventory Search The remaining question is whether the search of the trunk was lawful. The Supreme Court-4-

in Belton limited searches incident to an arrest to the passenger compartment and containers found therein. 454 U.S. at 460, 101 S.Ct. at 2864. Thus, a search incide

nt to the defendan

t’s arrest would notextend to the trunk of

the vehicle. The

state argues that once the off

icers located th

e weapon in the passeng

er compar tment of th

e vehicle , they h ad probab le cause t o search the trunk. We disagree. “A search based on probable cause whi ch reaso nably only tends to support the inference that contraband

or evidence will be found in the passenger compartment will be

of intolerable int

ensity andsco pe if exten ded to include a closed trunk.” 3 Lafave, Search and Seizure §7.2(c) (3 d ed. 1996). The officers did

not have probable

cause to believe contraband was concealed in the trunk merely because a pistol was found under the front seat. We note that “[t]his Court has never held that the inventory se arch exception g

ives a police officer carte blanche

to impound and inventory the contents of an arrested person’s car.” Watkins , 827 S.W.2d at 295. Instead, the facts of each case should be scrutinized to dete

rmine if the need of the police to impound and inventory a car outweighs the constitutionally protected i nterest of the citizen in the privacy

of the automobile

and the personal possessions contained therein. Drinkard v. State , 584 S.W.2d 650, 653 (Tenn. 1979). Drinkard held that, where a defendant is able to make arrangements

for removal of the vehicle, or if the vehicle can be parked and locked without obstructing traffic or

endangering the public, the police should refrain from towing and inventorying the vehicle. Id. at 650. Under the facts and circumstancespresented in the record, we conclude the search of the trunk and its contents was lawful. Where there are no reasonable or plausibl e alternative s for the disposition of the car, the appropriate

action is to impound the vehicle, despite the officer’s failure to ask the defendant if he hadan alternative to towing the vehicle. See State v. Nath an Lee Col quit , No. 03C01-9706-CR

00198, Hamilton County (Tenn. C rim. App. filed March 16, 1999, at Knoxville), perm. to app. denied (Tenn. 1999); State v. Ernest Lawson , C.C.A. No. 185, McMinn County (Tenn. Crim. App. filed June 18, 1991, atKnoxville), perm. to app. denied (Tenn. 1992). The extent of consultation withthe defendant is

only one factor to be considered by the trial court in determining whether the impoundmentwas reasonable and necessary. Statev. Lunsford , 655 S.W.2d 921, 924 (Tenn. 1983). Unlike Drinkard

, here there was nopassenger who could assume possession of the vehicle at the defendant’s behest. Officer Risner stated that the license plate did not match the vehicle and was not re gistered to t he defendant. Therefore, the defendant was not in a position to make arrangements

to have the vehicle removed. Furthermore, the defe ndant was stopped at approximately

12:30 a.m., and a pistol was found under the seat. Two of the officers testified that there had been several robberies and break-ins in the area. Wher

e an arrest is

made in a high-c

rime area subject to much vandalism, it is inappropriate to leave the vehicle unattended. See State v. Howard , 645 S.W.2d 751, 752 (Tenn. 1982). Thus, in light of all the circumstances, towing of the vehicle was the only reasonable option available. Once the decision was made to tow thevehicle, officers properly conducted an inventory of its contents. There

was no showing tha

t the inventory

search was a

“ruse for a gen eral rummagi ng” in an effort to discover

incriminating evidence. Florida v. Wells , 495 U.S. 1, 4, 110 S.Ct

. 1632, 109-5-

L.Ed.2d 1 (1990). We further conclude it was proper for the inventory to extend to all parts of the car where personal property might be found. State v. Glenn , 649 S.W.2d 584, 587 (T enn. 1983); see also Colorado v. Bertine , 479 U.S. 367, 375, 107 S.Ct. 738, 743, 93 L.Ed.2d 739 (1987). Thus, the search of the zipped duffel bag found in the vehicle’s trunk was proper. See Howard , 645 S.W.2d at 753 (unlocked containers may be opened when necessar y to conduct a real

is tic and meaningful inventory); Statev. Roberge , 642 S.W.2d 716, 720 (Tenn. 1982) (an unopened duffel bag could be removed and examined by police pursuant to a lawful inventory of the vehicle). We further no te that, u pon opening the trunk and smelling marijuana, the officer then had probable cause to believe that the bag in the trunk contained contraband. The police may search an auto mobile and the containers w ithin it where they

have probable c

ause to believe c

ontraband is c ontained therein. California v. Acevedo , 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 61 9 (1991). Accordingly, the officers could searc h the bag based upon probable cause. CONCLUSION Officer Risner made a lawful stop of the vehicle. Thereafter, the defenda nt was lawfully placed under arrest for driving on a revoked licence, and the officers conducted a proper search of the passenger compartment of the vehicle incident to that arrest. Under the circumstances, Of ficer Risner appropriately requested the vehicle be towed and instructed Of ficer Gibson to inventory the vehicle’s contents. Officer Gibson conducted a lawful inventory search of the vehicle and further hadprobable cause to believe the defendant’s bag co ntained contr

aband. All the evidence was properly o btained. Therefore, the judgment of the tr

ial court grant

ing the defenda

nt’s motion to suppress the evide

nce is reversed

, and the case is r

emanded for fur

ther proceeding

s.