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 court'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

granted the defendant’s motion to suppress the evidence. Upon a thorough review of the record, we

find the initial search to be a lawful search incident to an arrest, and further hold the subsequent

search of the defendant’s trunk was conducted pursuant to a proper inventory of the vehicle.

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; Remanded.

RILEY, J. delivered the opinion of the court, in which WADE, P.J. and OGLE, J. joined.

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney

General; Tom P. Thompson, Jr., District Attorney General; and Jerry D. Hunt, Assistant District

Attorney General, for the appellant, State of Tennessee.

Hugh Green, Lebanon, Tennessee, for the appellee, Jeffrey L. Hammons.

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 zone, and activated his blue 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

had none, 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that the defendant’s license had been revoked.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 defendant was driving, and the plate was not registered to the defendant.
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The transcript submitted to this court indicates that the suppression hearing was conducted

by Judge John D. Wootten, Jr. At the conclusion of the hearing, it was discovered that Judge

Wootten had a conflict, apparently since he was in the district attorney’s office at the time the case

arose. The defendant did not waive disqualification. The findings of the court, apparently based

upon the suppression hearing, were made by Judge J. O. Bond. The record is silent as to whether

all parties agreed 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. However, neither party

alleges any error in this regard. Furthermore, and most importantly, there appears to be no disputed

material facts arising in the suppression hearing. Accordingly, we have elected to address the case

on the merits. 

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It was the policy of the Mount Juliet Police Department to tow a vehicle once an arrest was

made, and no one was available to drive the vehicle. Vehicles were towed to private 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 arrest for

driving on a revoked license and called dispatch for a tow truck to remove the vehicle. Risner

instructed Officer Gibson to begin an “inventory” of the vehicle. During this initial search of the

vehicle, officers discovered a .45 caliber pistol under the front passenger seat. Officer Risner then

determined the vehicle would be impounded. Officers then removed the keys from the ignition of

the vehicle and opened the trunk, at which point Officer Gibson noticed a strong smell of marijuana.

Officer Gibson testified 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 revoked license, felony possession of a firearm, and possession of a firearm silencer. He

brought a motion challenging the legality of the search. Following a hearing, the trial court

determined the search was invalid and the evidence illegally seized.1

 The state now appeals the

decision of the trial 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 unless the evidence contained in the record preponderates against them. State v.

Carter, 988 S.W.2d 145, 149 (Tenn. 1999). However, this Court is not bound by 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 granting the defendant’s motion to suppress. It
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claims the officers made a valid stop, arrest and search incident to an arrest. Thereafter, 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 alleges the officers did not have probable cause to stop and detain

the defendant. It is undisputed that the vehicle was stopped due to speeding, and the defendant’s

license was revoked. The order of suppression does not indicate that the stop and arrest were

improper. The state’s notice of appeal includes indictment no. 98-0179 which charges driving on

a revoked license. There is no reason 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 to an Arrest

It is uncontested that the stop of the vehicle was legally executed. The defendant argues 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 arrest

for driving on a revoked license in lieu of issuing a citation. State v. Juan E. McAdams, C.C.A. No.

01C01-9704-CR-00140, Davidson County (Tenn. Crim. App. filed June 11, 1998, at Nashville),

perm. to app. denied (Tenn. 1999). The defendant was driving on a revoked license, and if allowed

to proceed, would continue to commit the offense in violation of the statue. Thus, the arrest was

proper. 

Once Officer Risner placed the defendant under arrest for driving on a revoked license, he

had the authority to search the passenger compartment of the vehicle 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 “inventorying” the defendant’s vehicle after his 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 arrested 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 search was confined to the automobile passenger compartment. Accordingly,

the initial search yielding the .45 caliber pistol was not an inventory search but a search incident 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
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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 incident to the defendant’s arrest would

not extend to the trunk of the vehicle. The state argues that once the officers located the weapon in

the passenger compartment of the vehicle, they had probable cause to search the trunk. We disagree.

“A search based on probable cause which reasonably only tends to support the inference that

contraband or evidence will be found in the passenger compartment will be of intolerable intensity

and scope if extended to include a closed trunk.” 3 Lafave, Search and Seizure §7.2(c) (3d 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 search exception gives 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 determine if the need of

the police to impound and inventory a car outweighs the constitutionally protected interest 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 circumstances presented in the record, we conclude the

search of the trunk and its contents was lawful. 

Where there are no reasonable or plausible alternatives 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

had an alternative to towing the vehicle. See State v. Nathan Lee Colquit, No. 03C01-9706-CR00198, Hamilton County (Tenn. Crim. 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, at Knoxville), perm. to app. denied (Tenn. 1992). The extent of consultation

with the defendant is only one factor to be considered by the trial court in determining whether the

impoundment was reasonable and necessary. State v. Lunsford, 655 S.W.2d 921, 924 (Tenn. 1983).

Unlike Drinkard, here there was no passenger 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 registered to the defendant. Therefore, the defendant was not in a position to make

arrangements to have the vehicle removed. Furthermore, the defendant 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. Where an arrest is made in a high-crime

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 the vehicle, officers properly conducted an inventory of

its contents. There was no showing that the inventory search was a “ruse for a general rummaging”

in an effort to discover incriminating evidence. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109
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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 (Tenn. 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 necessary to conduct a realistic and meaningful

inventory); State v. 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 note that, upon 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

automobile and the containers within it where they have probable cause to believe contraband is

contained therein. California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619

(1991). Accordingly, the officers could search the bag based upon probable cause. 

CONCLUSION

Officer Risner made a lawful stop of the vehicle. Thereafter, the defendant 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, Officer

Risner appropriately requested the vehicle be towed and instructed Officer Gibson to inventory the

vehicle’s contents. Officer Gibson conducted a lawful inventory search of the vehicle and further

had probable cause to believe the defendant’s bag contained contraband. All the evidence was

properly obtained. Therefore, the judgment of the trial court granting the defendant’s motion to

suppress the evidence is reversed, and the case is remanded for further proceedings.