# FILED
April 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE (Heard at Clarksv

ille)

STATE OF TENNESSEE ) FOR PUBLICA TION ) Appellant ) FILED: April 12, 1999 ) v. ) SUMNER CRIMINAL ) BOBBY CRUTCHER ) Hon. Jane W heatcraft, Ju dge ) Appellee. ) NO. 01S01-9804-CR-00081 ) ) (Search and Seizure) )
For the Appellant : For the Appellee : John Knox Walkup Bryce C. Ruth, Jr. Attorney General & Repor ter White House, Tennessee Michael E. Moore Solicitor General Karen M. Ya cuzzo Assistant Attorney Gener al



## OPINION

AFFIRMED BARKER, J.1 Oral argument was heard i n this case on Octo ber 15, 1998 i n Clarksvil le, Tennessee, as part of this Cou rt’s S.C.A.L .E.S. ( S upreme C ourt A dvancing L ega l E ducation for S tudents ) project. 2 OPINION
This is an appeal by the State of Tennessee from the judgment of the intermediate appellate court affirming the sup pression of evidence in the trial court below. 1 The sole issue is whether the warrantless police search of the appellee’s motorcycle violated his rights guaranteed by the Fourth Amendment of the United States Constitution and Arti cle I, section 7 of the Tennessee Con stitution.
The State contends that the suppression of evidence was improper because the searc h in quest ion was inc ident to a lawful ar rest. For t he reaso ns that f ollow, we conclude that the appellee, Bobby Crutcher, was not under arrest at the time of the police search. Accordi ngly, we affirm both the t rial court and the Court of Criminal Appeal’s determination that the s earch was not incident t o a lawful arrest. The evidence obtained from the searc h was properly suppr

essed.

BACKGROUND

On October 19, 1995, Officer Frank Moniz of the Gallatin Pol ice Department observed three motorcy clists drive aw

ay from a traffic light at an e xcessive rate of speed. The officer activated his emergency flashing eq uipment and pulled over tw o of the speeding motorcyclists. However, the third motorcycle, dri ven by the appellee, accelerated even more in an attempt to flee from the pursuing officer. Officer Moniz gave chase to the appellee and the two vehicles r eached speeds of one hundred (100) miles per hour. The officer radioed for assistan ce and eventually slowed his vehicle down upon enter ing a residential area.2 There was so me e vidence that Offic er Mon iz also plann ed to cha rge the a ppellee w ith D.U.I. Apparently

while at

the hospit

al, t he appellee submitted to a blood-al cohol test . The result s showed that his blood /alcohol leve l was less than 0.10 percen t. 3 As Offi cer Moniz cr ested a h ill in his pa trol car, h e observe d the app ellee dri ve up an emb ankment and wreck in to a storm drain. Th e appelle e had bee n thrown approximately twenty feet away from his motor cycle and was craw

ling out of the roadside brush when the officer drove up to apprehend him. Officer Moniz testified that upon reaching the appellee , he placed one arm behind the appell ee’s back and intended to arrest him for reck less endangerment and evadin g arrest. 2 However, when the appellee complained of i njuries, Officer Moniz ceased handcuffing him and called for an ambulance.

Officer Moniz testified that h e made no additional effort to arrest the appellee at the accident scene. While waiting for the am bulance, Officer Moniz and other police officers stayed with the appellee and made him lie still for his safety. The appellee questioned Officer Rich Ev ans about what was goi ng to happen to him. Officer Evans told the appellee that he woul d be taken to a nearby hospital for medical treatment. The officers did not discuss cri minal charges or arres t proceedings with the appellee and they did not give him a Miranda warning at the scene.

Officer Moniz testified that an ambulance arrived only minutes after he radioed for medical assistance. As the appellee was being loaded into the am bulance, his friend, Jeff Crook, asked if he could t ake control of the wrecked motorcycle. The appellee agreed and request ed that Mr. Crook also take possession of the gold chai ns that the appellee had around his nec k.

Officer Evans testified that he and the other officers agreed to let Mr. Crook remove the motorcycle fro m the scene. However,before releasing the bike, Officer3 Officer Evans t estifi ed that he sear

ched the content

s of the motorcy

cle based upon a pol icy of the Ga llatin Police De partm ent which required an invento ry search before re leasing p ersona l property to third par

ties. The motorcycle was appr oximately twenty f

eet from the roadsi de when the search was conducted. The recor d is unclear

whether the ap pellee was stillat the scene at that ti me. 4 The Gallati n police i mpounded appellee’ s motorcycle upon findingthe cocaine subst ance. 4 Evans inventoried the contents of a backpack and jacket that were located on it. 3 The officer found a loaded .38 caliber handg un located inside the backpack and found a pill bottle inside the upper left pocket of the jacket. 4 An examination of the pill bottle revealed several s mall packets of a white pow der, which later test

ed positive for cocaine.
The appellant was taken directly to Sumner Regional Medical Center from the scene of the accident. He spent s everal hours there rec

eiving medical x- rays and treatment. The record reflects that during that time, Of ficer Evans obtained an arrest warrant for the appellee based upon the evidence of th e cocaine and firearm possession. The appellee was released from the medical center that same evening and was taken to the Drug Task Force Center in Sumner County. The record is s ilent as to what t ranspire d at the Dr ug Task Fo rce Cente r. However, t he eviden ce shows that on the following day, the appellee was transpor ted back to Sumner Regional Medical Center after hospit al officials notified police that the appellee had a broken neck.
The appellee stayed at Sumner Reg ional Medical Center for ap proximately four days. The record reflects that Officer Moniz obtained an a rrest warrant for the appellee on October 24, 1995, based upon th e charges of evading arrest and reckless endangerment. Officer Moniz testified that the ap pellee was arrested after his release from the medical center, and was charged with: (1)

possession of a controlled substan ce, to w

it: coc aine ov er 0.5 g rams, w

ith int ent to se ll; (2)

possess ion of a5

handgun during the commissi on of a felony; (3) reckless endangerment; and (4) evading arrest.
The appellee filed a motion to suppress the cocaine substance and the handgun on the ground that they were obtained through an improper search and seizure. Follow

ing an evidentiary

hearing, the trial cour

t granted the motion to suppress finding that the sear ch was without probab le cause and did not fall wi thin an exception to the warr

ant requirement. The trial court determined that there w ere no grounds for an inventory search since a third par ty, Jeff Crook, was av

ailable to remove the motorcycle from the scene. In addition, the court f ound that the search was not incident to a law ful arrest because the appellee w as not under arrest when the search was conducted.
On interlocutory appeal,the intermediate appellate cour t affirmed the suppression order. The State of Tenness ee appeals to this Court cont ending that the search was proper as incident to a lawful arrest. The State concedes that the po lice officers were not entitled t o conduct an inventory search. See Drinkard v. State , 584 S.W.2d 650, 653-54 (Tenn. 1979). Our inquiry, therefore, is whether the appellee was under arrest when the pol ice officers conducted the search.

STANDARD OF REVIEW
This case involves a review of the trial court’s findings of fact and law in granting the motion to suppr ess. In State v. Odom , 928 S.W.2d 18, 22-23 (Tenn. 1996), this Court clari

fied the standard to be used by appel late courts when rev iewing those findings:5 The righ t to be free from unreas onable s earche s and s eizures is p rovided in th e Fourth Amendment to the United Sta tes Constit ution and Ar ticl e I, section 7 of the Tennessee Consti tution . The Fourth A men dme nt is applica ble to the sta tes throu gh the F ourteen th Am endm ent. Map p v. O hio , 367 U.S. 64 3, 655, 81 S.Ct. 168 4, 1691, 6 L.Ed.2d 1081 (1 961). 6 Questions of credibility of the witnesses, the w eight and value of the evidence, and resolution of conflicts in the evidence are ma tters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression heari ng, including all r easonable and legitimate inferences that may be drawn from that evidenc e. So long as the greater weight of the evidence supports the trial court’s findings, those findings shall be upheld . In other words, a tr ial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.

Id. at 23. The application of the law to the facts fou nd by the trial court, however, is a question of law which this Court reviews de novo

. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997); Odom , 928 S.W.2d at 23. W e apply these standards to address the issue in this case. C ontrary to the position taken by the dissent, w e consider the issue of whether an arrest was made for Fourth Amendment purpos es to be one primarily of fact. See Childs v. State , 584 S.W.2d 783, 786-87 (Tenn. 1979) (reviewing w

hether an accused was in c ustody for purposes of giv ing the Miranda warnings as primarily a question of fact).

DISCUSSION
The fundamental principle of search and seizure jurisprudence is that the police may not conduct a search unles s they first show pr

obable cause and obtain a war rant from a neutral magistrate. 5 Under both the federal and state constitutions, “a warrantless search or seizure is presu med unreasonable, and evidence discovered as a result thereof is subject to suppression, unless the St ate demonstrates that the search or seizure w

as conducted pursuant to one of the narr owly defined excepti ons to the warrant requirement.” State v. Bridges , 963 S.W.2d 487, 490 (Tenn. 1997).6 See Unite d Sta tes v. Sho lola , 124 F.3 d 803, 81 7 (7th Cir. 1 997); United Stat es v. Franco , 981 F.2d 47 0, 472 (1 0th Cir. 19 92); United S tates v. W hite , 871 F.2 d 41, 44 (6 th Cir. 198 9), affir med after remand 892 F.2 d 1044 (6th Cir. 19 89); Unite d Sta tes v. Karlin , 852 F.2d 968, 971-72 (7th Cir. 1988); State v. Pittman , 556 N.W .2d 276, 2 82-83 (N eb. Ct. Ap p. 1996) ; State v. Haught , 831 P.2d 946, 948 (Idaho C t. App. 199 2); State v. Ga rcia , 801 S.W .2d 137, 1 41-42 (T ex. App . 1990). But see United States v. Vasey , 834 F.2 d 782, 78 7 (9th Cir. 1 987); State v. Gr een wald , 858 P.2d 36, 37 (N ev. 1993 ). 7 One exception to the warrant requirement is a contemporaneous police search that follows a lawful ar

rest. Chimel v. California , 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); State v. Watkins , 827 S.W.2d 293, 295 (Tenn. 1992). When police officers make a lawful custodial ar rest, they are permitted,as incident to the arrest, to search the per son arrested and the immediately surrounding area. Chimel , 395 U.S. at 763, 89 S.Ct. at 2040.The rationale for those searches is the need to disarm the arrestee in order to safely take him i nto custody, and the need to preserve evidence for l ater use at trial. United States v. Robins on , 414 U.S. 218, 234, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973)

.

In cases where the arre stee is an occupant of a vehicle, police officers may conduct searches, contemporaneous to the arrest, of the passenger compartments inside the vehicle. New York v. Bel ton , 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1 981). Following Belton , this Court has joined s everal jurisdicti ons 6 in upholding the validity

of those searches even whe re the arrestee is neutral ized in the back seat of a police car w hen the search is conducted. Watkins , 827 S.W.2d at 295- 96.
The State contends that the appellee w as under arrest at the acci dent scene and that the search was proper under Belton and Watkins . We need not address whethe r the search fel l with in the scope of Belton and Watkins because we affirm the trial court’s conclus ion that the appellee was not under arrest when the se arch was conducted.8 “The standards for review ing police conduct become mor e stringent as the degree of invasion of the citizen's privacy increases.” State v. Hawkins , 969 S.W.2d 936, 938 (Tenn. Crim. App. 1997). There are three tiers of law enforcement action involving “seizures” of the person under the Fourth Amendment. These situations include a wide range of invasive actions, r anging from the “stop and fris k” under reasonable suspicion, to the “custodial arrest” bas ed on probable cause, to incarceration of an offender followi ng a custodial arrest.
Not all lawful seizures justify the same degree of search. For instance, a police officer who has no reasonable suspicion that criminal activity has taken place may still make a casual, investigatory stop; but the officer’s law enforcement authority under such circumstances is l imited to informal questionin g of the persons involv ed. Florida v. Bostick , 501 U.S. 429, 433, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991); State v. Butler , 795 S.W.2d 680, 685 (Tenn. Crim. App. 1990). Where, on the other hand, the officer has a reasonable, articulable suspicion that a person has engaged in, or is preparing to engage i n, criminal behavior, the level of permissible l aw enforcement authority is r

aised to the stop and fris k of the person un der the p rincip les of Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.E d.2d 889 (1968). In such cases,a limited patdown search of the person and a l imited search of the passenger compartment of the vehicle in which the person was riding are permissible upon a showing that such action is justified to prot ect the officer. Id. , 392 U.S. at 27, 88 S.Ct. at 1883; State v. Simpson , 968 S.W.2d 776, 780 (Tenn. 1998).
By comparison, the next level of law enforcement author ity, the custodial arr

est, is justified upon a showi ng of probable cause to believ e that a crime has been committed, and that the suspect of the i nvestigation committed tha t crime. As discussed above, a lawful custodial arrest carries with it the power to perform a search “incident to arrest,” which is a contemporaneous search of both the person arrest ed,7 An in vento ry sea rch o f a ve hicle w ill be up held, how ever , only w hen there is no r eas ona ble alternative to seizure of the vehicle

. Drinka rd v. State , 584 S.W .2d 650, 6 53 (197 9).

8 The dissent seems to in fer that because Officer Moni z had probabl e cause to arrest the appellee f

or evading arrest and reckl ess drivi ng, the appel lee was necessari ly “arrestable; ” and therefore,whether or not an arrest had actually been effectuat

ed, a search i ncident t o arrest was justif ied. We decline t o hold that

a search may be upheld as a search inci dent to arr est merely because a lawful cu stodial arre st “could h ave” be en m ade. State v. Moore , 949 S.W .2d 7 04, 7 06 (T enn . Crim

. App. 19 97), no app. fi led , which ap pears to hold to the c ontrary, is he reby overr uled. Accord , Layland v. State , 535 P.2d 1043 (A laska 1 975), overruled on other grounds ; State v. Gr een wald , 109 Nev. 808, 858 P.2d 36 (1993); People v. Evan s , 43 N.Y.2 d 160, 37 1 N.E.2 d 528, 40 0 N.Y.S.2 d 810 (N .Y. 1977).

9 See e.g. , Cupp v. Murphy , 412 U.S. 291,93 S.Ct. 2000,36 L.Ed.2d 900 ( 1973)(warrant less search of evi dence beneath suspect’s fingernai ls reasonabl e in stran gulati on murder case even in t he absen ce of a c ontem porane ous arre st, beca use of “e vanes cent na ture” of su ch evide nce); United Stat es v. Chapel , 55 F .3d 1 416 , 141 9 (9th Cir. 1 995 )(wa rran tless seizu re of DU I sus pec t’s blo od re aso nab le even without

contemporaneous arrest because the accuracy of blood-al cohol evi dence diminishes quickly ove r time); United States v. Berry , 866 F.2d 887, 891 (6th Cir . 1989)(same factual scenario and rational e as in Chapel ). For an excell ent di scussion o f the narrow Cupp excep ti on see3 Wayne R. LaFav e, Search and Se izure § 5.4(b) at 155-163 (1996 ed.). 9 and the area into which the arrestee might reach for a w eapon or destroy evidenc e, including the passenger area of any vehicle in which the arrestee w as riding. Chimel , 395 U.S. at 763, 89 S.Ct. at 2040; Belton , 453 U.S. at 457, 101 S.Ct. at 2862

.

The most invasive law

enforcement seizure is inc arceration. Law enforcement authority in such cases extends to performing a detailed “inventory search” of all personal effects in the arrestee’s possession, and possibly of the vehicle in whi ch he was riding at the ti me of arrest, if that vehicle is also seized. Illinois v. Lafayette , 462 U.S. 640, 648, 103 S.Ct. 2605, 2611, 7 7 L.Ed.2d 65 (1983); South Da kota v. Opperman , 428 U.S. 364, 372, 96 S.Ct. 3092, 3099, 49 L.E .2d 1000 (1976). 7
The bottom line is this: when the police conduct a full search unde r Chimel , the seizure of the suspect must r ise to the level of a custodi al arrest. 8 The only possible exception to this rule might be a limited search in cases where there is probable cause to believe that a crime has been committed, probable cau se to believe that evidence of the crime in question will be found, and the necessity for an immediate, warrantless search to prevent the destr uction or loss of evidence. 9 In this case, howev er, the search of the appellee’s motorcycle was wholly unrelated to the crime for which police10 The dissent opi nes that t he defini tion of “ arrest” adopt

ed in Robertson and reaffi rmed in West is no longer

accurate. Cited are a seri es of United St ates Supreme Court cases and Tennessee cases that the dissent cl aims establi sh a new definition of a rrest, t o wit: “an arrest o ccurs if, in view of allthe circumstances surroundi ng the inci dent, a reason able person woul d have understood that he or she was not free t

o leave.”

This defini

tion, however, fai ls to recog nize th e disti nction bet ween “seizur

e” and “arrest, ” discussed above.A person may be seized without being place d under custodi al arrest . None of the cas es c ited b y the d isse nt de al with this p recis e issu e. W hile we agre e tha t the “r eas ona ble person” standar

d is a factor in determining whether an arrest has occurred, just as it woul d be for any seizure, w e believe m ore is req uired to es tablish a cu stodial arre st for purp oses o f a searc h inciden t to an arres t. 10 had probable cause to arrest. In order to justify a full Chimel search incident to arres t, the critical question

remains whether the appell ee was, in fact, arrested at the scene.

In Tennessee, an arrest is more specifically defined as “the taking, seizing , or detaining of the person of another, ei ther by touching or put

ting hands on him, or by any act which indic

ates an intention to take him int o custody and subjects the person arrested to the actual control and will of the person making the arrest.” West v. State , 221 Tenn. 178, 184, 425 S.W.2d 602, 605 (1968) (citation s omitted); Robertso n v. State , 184 Tenn. 277, 284, 198 S.W .2d 633, 635-36 (1947) (citations omitted); State v. Williams , 914 940, 947 (Tenn. Crim. App. 1995). 10 An arrest may be affected without formal words or a station house booking. 5 A m. Jur. 2d Arrest

§ 2 (1995). However, there must be actual restraint on the ar restee’s freedom of movement under legal authority of the ar resting officer. Id.
Relying on that definition, we acknowledge that the facts in this case are close as to whether the appellee was under arrest at the accident scene. The trial court found that Officer Moniz apprehended th e appellee and intended to place hi m under arrest following the wreck. The officer testified, however, that he did not arrest the appellee due to the appellee’s i njuries. Although Officer M oniz had probable cause to make an arrest at the scene, neither he nor Officer Evans dis cussed criminal charges or arrest procedures w ith the appellee. The appellee q uestioned the officers and was told only that he woul d be taken to a nearby hospital for medical treatment. The11 The State originally tried t o justify the search of the motorcycle and its contents as an inventory search. It

was only af

ter it became apparent that this argument would fail u nder the pri nciples of Drinka rd v. State , 584 S. W.2d at 653-54, ( because of th e offe r by appel lee’ s fri end Jef f Crook t

o take control of

the motorcycl e) that the State tried to j ustify this searchas “inci dent to arr est.” I t is cl ear that Officer Moniz

did not bel ieve he had arr ested the appel lee.

11 officers did not take the appellee i nto custody until sev eral hours later when he was first released from the medical c enter.
Giving deference to the tr ial court’s findings of fact, we agree with the trial court’s ultimate conclusi on that the appellee was not und er arrest at the time of the search. The evidence reflect s that the appellee was kept at the accident scene for only a few minutes while waiting on the arrival of an ambulance. Without more, there is no showing that the appellee was being detai ned by police for any re ason other than medical treatment.
If law enforcement officers intend to justif y a search as incident to an arrest, it is incumbent upon them to take some action that would indicate to a r easonable person that he or she is under arr est. 11 Although formal words of ar rest are not required, see 5 Am. Jur. 2d Arrest

§ 2 (1995), some words or actions should be used that make it clear to the arrestee that he or she is under the control and legal authority of the arrestin g office r, and not free to le ave. In thi s case, ac tions tha t would have accomplished this included, but were not limited to, a ccompanying the appellee to the hospital until the arrest warrant could be obtained and served, telling the appellee that he should consider himself in c ustody pending actual ser vice of the arrest war

rant, or any other words or actions that would hav e conveyed the same messag e.

CONCLUSION

It is axiomatic that a w

arrantless police searc h may not precede an arrest and serve as part of its jus

tification. Smith v. Ohio , 494 U.S. 541, 543, 110 S.Ct. 1288,12 The “search inci dent to arr est” excepti on from Chimel is based upon t he need to protect poli ce officers an d to preserve evidence at the ti me of arrest. The di ssent reli es on the Supreme Court’ s later decision i n Rawli ngs v. Kentuc ky , 448 U.S . 98, 111, 1 00 S.C t. 2556, 25 64, 65 L.E d.2d 633 (1980), to argue that a search m ay be upheld under Chimel where it o ccurs before t he arrest. We do not read Rawlings to broaden t he scope of searches i ncident t o lawful arrests. In Rawlings , the pol ice arrest ed the suspect imm ediately after, and contemporaneous to, the searc h of his person. The Sup reme Co urt upheld the sear

ch as incident

to arrest

based upon the ci rcumstances in that case. 448 U.S. at

111, 100 S.Ct. at 2564. In appel lee’s case,the poli ce did not t ake custody of the appellee untilseveral hour s after the search, when the appell ee was first released fr

om the medical center. Moreover, t he formal arrest was not made untilapproximately four days l ater. The searchexceeded the scope and r ational e of Chimel

. 12 1290, 108 L.Ed.2d 464 (1990) (per curiam); Sibron v. New York , 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968) . Moreover, we ar e not prepared to hold that the police may conduct a warrantless search merely because they have probable cause to arrest the suspect. Having d etermined that the appellee wa s not under arrest at the time of the search,we conclude that the searc h was not incident to a lawful arrest. 12
The judgment of the Court of Criminal Appeals is affirmed with cos ts taxed to the State of Tennessee.

_______________________________ WILLIAM M. BARKER, JUSTICE

CONCUR: Anderson, C.J., Birch, J.
DISSENT: Drowota, Holder, JJ.