# FILED
April 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE (HEARD AT CLARKSVILLE)

STATE OF TENNESSEE, ) FOR PUBLICATION ) Plaintiff-Appellant, ) Filed: April 12, 1999 ) v. ) SUMNER CRIMINAL ) BOBBY CRUTCHER, ) Hon. Jane Wheatcraft, ) Judge ) Defendant-Appellee. ) ) ) No. 01S01-9804-CR-00081 )

DISSENTING OPINION I respect fully diss ent from the majo rity’s deci sion in th is case. In my view, the appellee had been arrested at t he time his motorcycle w as searched; therefore, t he search was valid as incident to a lawf ul arrest. Even assu ming, however, that the appell ee had not been technically ar rested at the time the search occurred, the search and arrest were substantially contemporaneous; therefore, the search was c onstiutionally val id as incident to a law ful arrest. Accordingly, I w

ould reverse the judgment s of the lower courts w hich ordered suppression of the evidence s eized during the searc

h and remand this cause to the trial court for further proceedings.-2- 

### I. SEARCH INCI DENT TO ARR EST The Fourth Amendment to the United States Constitution provides

that “[t]he right of the people to be secure in their persons,houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” Similarly Articl e 1, Section 7 of the Tennessee Constit ution guarantees “that the people shall be secure in the ir persons, houses, papers and possessions from unreasonable searches and seizures . . . .” “[A]rticle I, section 7 is identical in intent and purpose with the Fourth Amendment.” State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997). Therefore, both the feder al and the state constitutions protect against unreasonabl e “searches” and “seiz ures.” As the majority

decision recognizes, under both the federal and state constitutions , a warrantless sear ch or seizure is presumed cons titutionally unreasonabl e unless the State demonstrates that the search or seizu re was conducted pursuant to one of the narrowly defined exceptions to the war

rant requirement. State v. Simpson , 968 S.W.2d 776, 780 (Tenn. 1998).

The State contends that the search in this case was conducted in accordance with one of those nar rowly defined except

ions to the warrant requirement -- a searc

h incident to a lawful arr est. 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 arr est of the occupant of an automobile, a search of the p erson arrested and of the passeng er compartment of the vehicle is c onstitutionally permis

sible. New York v. Belton ,-3-

453 U.S. 454, 457, 101 S.Ct. 2860, 2862,69 L.Ed.2d 768 (1981); Watkins , 827 S.W.2d at 295-96. Officers may conduct the searc h of the passenger compartment of the automobile even thoug h the person arrested has been pl aced in the back seat of a police car

. Id.

In this case, the trial c

ourt and Court of Criminal Ap peals found that the appellee, Bobby Crutcher,had not been lawfully ar rested prior to the searc h, and as a result the lower courts held the search const itutionally inval id as incident to a lawful arrest. In affirming the decisions of the lower courts, the majority characterizes the low

er courts’ conclusion t

hat no lawful arrest occur red prior to the search as a factual finding and states that the evidence in the record does not preponderate against that fi nding.
While the majority states the correc t standard of appellate revi ew with respect to factual findings, State v. Odom , 928 S.W.2d 18, 22-23 (Tenn. 1996), the lower court’s co nclusion that the appellee had not been lawfully arres

ted at the time of the search is not a finding of fact, it is a conclusion of law , derived from an application of the law to the undisputed facts in this case. This Court is not bound by the conclusions of law of the lower courts and reviews such conclusions de
novo
. State v. Yeargan , 958 S.W .2d 626, 629 (T enn. 1997). Revie wing de novo the legal conclusions of the lower courts, it is clear that the trial c ourt and the Court of Criminal Appeals erred in finding the search in this case constitutiona lly invalid.

In conclu ding that the appe llee had n ot been l awfully arr ested, t he major ity-4-

and the lower courts cite decisions of this Court fro m 1968 and 1947 for the proposition that an arrest in Tennessee is “the taking , seizing, or detai ning of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjec ts 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); Robertson v. State , 184 Tenn. 277, 284, 198 S.W.2d 63 3, 635-36 (1947). The undisputed facts in this record demonstrate that Officer Moniz apprehended Crutcher as he w as crawling from the roadside brush, seized Crutcher’s arm, and began the handcuf fing process. These are certainly acts which “indicate an i ntention to take” the appellee i nto custody. In addition, Cr utcher was lying

on the roadside and subjected to the actual co ntrol and will of Off icer Moniz a t the scen e of the accident . In my view, therefore, even applying the definition employed by t he majority, the appellee ha d been lawfully arrested at the scene of the accident prior to the search. However, the definition of arrest applied by the majority and the low er courts is no longer

the applicable standard.
Under current applicable law, an arrest occur s if, in view of all o

f the circumst ances sur roundin g the incid ent, a rea sonable person wou ld have understood that he or she was not free to leave. California v. Hodari D. , 499 U.S. 621, 627-28, 111 S.Ct. 1547, 1551, 113 L. Ed.2d 690 (1991); Michigan v. Chesternut , 486 U.S. 567, 573, 108 S.Ct. 1975, 1979 (1988); INS v. Delgado , 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Florida v. Royer , 460 U.S. 491, 502, 103 S.Ct. 1319, 1326- 27, 75 L.Ed.2d 229 (1983) (plural ity opinion); United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 1877,1 Miranda v. Ar izona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 69 4 (1966).

-5- 64 L.Ed.2d 497 (1980)(plurality opinion of Stewart, J .); State v. Moore , 776 S.W.2d 933, 937 (Tenn. 1989); State v. Bragan , 920 S.W.2d 227, 242 (Tenn. Crim. App. 1995); State v. Darnell , 905 S.W.2d 953, 95 7 (Tenn. Crim. App. 1995); State v. Greene , 929 S.W.2d 376 (Tenn. Crim. App. 1995); 3 Wayne R. LaFave, Search and Seizure § 5.1(a) (1996); cf. State v. Anderson , 937 S.W.2d 851, 855 (Tenn. 1996) (test to determine w hether a person is in custody and entitled to Miranda 1 warnings prior to interrogation is “ whether a reasonable pers on in the suspect’s position wou ld consider himself or hers elf deprived of freedom of movement to a degree associated with a formal arrest.”). It is an objective test which does not depend upon the sub jective intention of the officer nor the subjective perception of the suspect. The subjective intent of the officer is relevant to the assessment o nly to the extent that the officer’s intent has been conveyed to the person co nfronted. Chesternut , 486 U.S. at 575 n.7, 108 S.Ct. at 1980 n.7; Mendenhall , 446 U.S. at 554 n.6, 100 S.Ct. at 1877 n. 6 (plurality opinion of Stewart, J.); 3 Wayne R. LaFave, Search and Seizure § 5.1(a) (1996);
see also Stansbury v. California , 511 U.S. 318, 323-25, 114 S.Ct. 1526, 1529-30, 128 L.Ed.2d 2 93 (1994), citin g Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Anderson , 937 S.W.2d at 854 (uncommunicated belief that person is a suspect is irrelev ant to Fifth Amendment custody determination).

Factors courts have c

onsidered to determine whethe r an arrest has occurred include the follow ing: the time, place and purpo se of the encounter; the2 Comp are Anderson , 937 S.W .2d at 855 (factors relevant to determination of whether a reasonable perso n would consider himself or her

self incustody for

Fifth Amendment purposes include the time and location of th e interr ogation; the duration and character o f the questioning; the officer’s tone of voi ce and general demeanor; the suspect’ s method of transport ation t o the place of questioni ng; the number of pol ice offi cers present; any li mitation on movement or other form of restrai nt imposed on the suspect during t he interr

ogation; any int

eractions between the off icer and the suspect, includi ng the words spoken by the offi cer to the susp ect, and the suspect’s ve rbal or nonverbal r

esponses; the ext

ent to whi ch the suspect i s confronted with the off icer’s su spicions of guilt or eviden ce of gu ilt; and the ex tent to whic h the sus pect is m ade aw are that he or she is fr ee to refrain from answering que stions or to end the interview at will. ) -6- words used by the officer;the officer’s tone of voice and g eneral demeanor; the officer’s statements to others w ho were present during the encounter; the threatening presence of several officers; the display of a weapon by an officer; and the physical touching of the person of the citizen. Mendenhall , 446 U.S. at 554, 100 S.Ct. at 1877; People v. Pancoast , 659 P.2d 1348 (Colo. 1982); 3 Wayne R. LaFave, Search and Seizure § 5.1(a) (1996). 2
The majority opinion goes into great detail to dis

tinguish between var

ious Fourth Amendment seizures of the person and ref uses to apply the “reasonable person” standard because it “ fails to recognize the distinction between ‘s eizure’ and ‘arrest.’” I feel the distinction drawn by the majority is immateri al in the context of this appeal. While the scope of searc h permissible and the term used to describe a seizure vary, depending upon th e quantum of individualiz ed suspicion supporting the seizure, the definition of seizure does not vary. For example, if an officer has only a reasonable, articulable s uspicion that a person has engaged in, or is abo ut to engage in a crime, t he officer may seize the pers on, but the duration of the seizur e, and the scope of the search is l imited to an investigatory s

top and frisk. Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Though the scope of the co nstitutionally permis sible search is limit

ed because the seizure is based only upon reasonable, articulable suspicion, the test-7-

to determine whether the per son has been seized is the s ame -- in view of all

the circumst ances sur roundin g the incid ent, would a reasona ble perso n have understood that he or she was not free to leave. The standard for determining whether a seizure has

occurred remains the same - regardless of whether it is an “arrest,” based upon probabl e cause or an “investi gatory stop,” based upon reasonable articulable sus picion. It is the indiv idualized suspicion w

hich varies and delineates the scope of the searc h and the term used to describe t he seizure. A lawful arrest, sufficient to support the search incide nt to arrest exception t o the warrant requirement,is simply a Fourth Amend ment “seizure” whi ch is based upon probable cause. Therefore, in dete rmining whether a lawful warrantless arrest has occurred, tw o questions must be answer ed: (1) did a seizure of the person occur, i.e., in view of all the circumstances surrounding the incident, would a reasonable person have under stood that he or she was not free to leave; and (2) if so, was the seiz

ure based upon probable cause. In this case, the majority recognizes that “Officer Moniz had probable cause to make an arrest at the scene.” Therefore, the difference of opinion relates only to the first question -- whether a seizure oc

curred. The distinctions d rawn by the majority are irrelevant to that question.
When the correct principle of law is applied to th e circumstances of this case, it is clear that the appellee had been lawfully arrested at the time the sea rch of his motorcycle occurr ed. The incident giving rise to this appeal occur red when Officer Moniz ob served three mot orcyclists pull away fro m a traffic ligh t at a high rate of speed. When Officer Moniz activated his siren and lights,two of the motorcyclists pulled over. Crutcher, however, fled from Officer Moniz at speeds in3 The m ajority’s repeated references to issuance and service of an arres t warrant are puzzli ng. It is beyond dispute that the offi cer in this case had sufficient grounds to make a warran tless arre st. Office r Moniz w itnessed the defe ndant c omm itting crime s. Tenn . Code A nn. § 40-7-1 03(a)(1 ) (1997 R epl.).

4 The trialjudge in this case found that the “pol ice offi cers acted very professional ly. They probably

saved this Defendant’s l ife by not jerki ng him off the gr ound and arresti ng him, as it turned out he had a broken neck. ” Yet, becau se of the off icer’s p rofessional

conduct, the majority finds that no arrest occur

red, conclud es the ensuing se arch is const itutionally infir m, and suppresses the evidence found du ring the search. The majorit y’s hol ding fai ls to recog nize th at the purpose of the exclus ionary rule is to d eter official law enforce men t wrongd oing, see State v. Huddleston , 924 S.W.2d 666, 672 (Tenn. 1996), not to puni sh completely appropriat

e and highl y professi onal poli ce condu ct.

5 The ma jority re lies up on th e fac t that th e app ellee w as k ept a t the a ccid ent s cen e for only a few m inutes as suppo rt for its conc lusion that n o arrest o ccurre d, stating, “[t]he evidenc e reflects that the appellee was kept at the acci dent scene for onl y a few minutes whi le waiting on the ar rival of an ambulance. Without more, t here is no showi ng that the appellee was being detai ned by police for a ny rea son othe r than me dica l treatm ent.” The se s tatem ents imp ly that p olice o ffice rs sh ould detain i njured suspects i n need of medical at tentio n on the side o

f the hig hway unti l all the formalities of a station house arrest are com pleted. That is certainly not a poli cy which this Court should e ncoura ge either e xplicitly or implicitly. -8- excess of one hundred miles per hour through a residenti al area just outside the city of Gallatin in Sumner County. Crutcher cr

ashed his motorcycle and w as apprehended by Officer Moniz as he was crawling out of the roadside brush. This was not a routine traffic st op which ordinarily

does not result in an arre st. Officer Moniz witnessed C rutcher commit criminal offenses,reckless endangerment and evading arrest. 3 Crutcher was alr eady on the ground when O fficer Moniz arriv

ed at the accident scene. Officer M oniz proceeded directly to Crutcher, seized Crutcher’s arm, and moved it into a position to handcuff Crutcher. Officer Moniz released Crutcher’s ar

m and did not handcuff him only because C rutcher complained of pain and injuries. 4 Though he did not handcuff Crutcher, Officer Moniz remained with

him and was beside Crutc her when Officer Rich Ev ans arrived on the scene. Bot h officers stayed with C rutcher until he was t aken to the hospital by ambulance. They repeatedly told Crutcher to remain still. Fortunately for Crutc her, the ambulan ce arrived quickly. 5 Though neither informed Crutche r that he was under arrest,formal words are not a condition precedent to the6 Though the majority repeats the well-set

tled propositi on that for mal words are not r

equired to eff ect a n arre st, the ma jority fa ils to ap ply the rule in this c ase . Give n the ma jority de cisio n, it will be difficult fo r police to ar rest either a n intoxicate d or unc onsciou s perso n beca use it is difficu lt to inform such a person, either by words or actions, that he or she i s being arrest ed.
7 Indeed, “r

easonable” i s hardly

an appropriate descript ive ter m for a defendant who believes that he i s free to l eave the scene of an accident whi ch results b ecause the defendant fled from police on a highway which travels through a resid entialarea at speeds i n excess of one hundred m iles per hour. -9- existence of a lawful arr est. 6 Chesternut , 486 U.S. at 574, 108 S.Ct. at 1980

. Moreover, “an arres

ted person is not invariably taken to a police st ation or confined; if an arrestee is taken to the police station, that is no more than a continuation of the custody inherent in the arrest status.” Illinois v. Lafayette , 462 U.S. 640, 654, 103 S.Ct. 2605, 2609, 77 L.Ed.2d 65 (1983). Finally, the testimony of Officers Moniz and Evans t hat Crutcher was not ar rested at the scene of the accident does not control the d etermination. “Arrest” is a legal term of art, and a court must apply the law to the facts to determine whether an arrest has occurred. Watkins , 827 S.W.2d at 296.

For all these reasons, I disagree with the majo rity and would conc lude that Crutcher had been arrested at the time his motorcycle was searched because any reasonable person in Crutc her’s position would have understood that he was not free to leave in light of the circumstances. 7 That being the case, I am of the opinion that the warrantless search of Crutcher’s motorcycle was valid as a search incident to the lawful w arrantless arrest.



### II. RAWLINGS V. KENTUCKY8 This principle has been applied in an overwhelm ing majority of jurisdictions both before and after the United Stat es Supreme Court rendered its decisi on in Rawlings

. See Seay v. Sta te , 651 So .2d 81, 83 (Ala. Crim . App. 199 4); State v. Earl , 970 S.W .2d 789, 7 92 (Ark . 1998); State v. Vale nzue la , 589 P.2d 1306, 13 07 (Ariz. 19 79); People v. Si mon , 290 P.2d 531, 533 (Cal. 1955); People v. Sutherland , 683 P.2d 1192, 11 96 (Co lo. 1984); State v. Trine , 673 A.2d 1098, 1110 (Conn . 1996); Hillv. U.S. , 627 A.2d 975, 978 (D.C. 19 93); Collier v. State , 338 S.E.2d 7 24, 725 (Ga. App. 19 85); State v. Delmondo , 512 P.2d 551, 554 n.2 (Haw ai’i 1973); State v. Crabb , 688 P.2d 1203, 12 09 (Idah o App. 1 984); People v. Kol ichman , 578 N.E .2d 569, 5 74 (Ill. App. 19 91); Santana v. State , 679 N.E .2d 1355 , 1360 (Ind . App. 199 7); State v. Peterson , 515 N.W.2d 23, 25 (Iowa 1994); Com mon wealth v. B rillante , 503 N.E .2d 459, 4 62 n.5 (M ass. 19 87); Comm onwealth v. Mantinez , 692 N.E .2d 92 (M ass. Ap p. 1998) ; Lee v. Sta te , 537 A.2d 235, 247 (Md. 19 88); State v. Brooks ,, 634 A.2d 1265, 12 66 (Me . 1993); People v. Arterberry , 429 N.W .2d 574, 575 (Mich. 1988); State v. Varnado , 582 N.W .2d 886, 8 92 (Min n. 1998) ; State v. Bauman , 586 N.W.2d 416, 420 (Minn. A pp. 1998 ); Ellis v. State , 573 So .2d 724, 7 26 (Mis s. 1990 ); State v. Meadors , 580 P.2d 903, 905 (M ont. 1978 ); State v. Br ooks , 446 S.E .2d 579, 5 87 (N.C . 1994); State v. Tw ohig , 469 N.W.2d 344, 354 (Neb. 19 99); New Hampshire v. DeGrenier , 571 A.2d 814, 816 (N.H. 19 86); State v. Pena , 779 P.2 d 538, 54 4 (N.M . 1989); State v. Jones , 678 N.E .2d 285, 2 91 (Oh io. App. 19 96); State v. Elk , 439 P.2d 1011 (O r. 1968); State v. Green , 676 P.2d 938, 940 (Or. Ap p. 1984) ; Com mon wealth v. Trenge , 451 A.2d 701, 710 n.8 (Pa. S uper 19 82); State v. Mo ultrie , 451 S.E.2d 34, 37 (S.C. App. 1994); State v. Nguyen , 563 N.W .2d 120, 1 25 n.6 (S .D. 1997 ); W illiams v. Sta te , 726 S.W.2d 99, 101 (T ex. Crim . App. 198 6); State v. Spurgeon , 904 P.2d 220, 227 (Utah A pp. 1995 ); Parker v. Com mon wealth , 496 S.E .2d 47, 52 (Va. 199 8); State v. McKenna , 958 P.2d 1017, 1021 (Wash. App. 19 98); State v. Swanson , 475 N.W .2d 148, 1 54 (W is. 1991); United Stat es v. Bowden , 121 F.3d 71 0 (6th Cir. 1 997); United Stat es v. Mil ler , 925 F.2 d 695 (4 th Cir. 199 1).

-10- However , even assu ming that Cr utcher had no

t been arres

ted at the tim e this search occurred, I am of the opinion that the warrantless search was constit utional ly val id under

the reas oning o f Rawlings v. Kentucky , 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 ( 1980). In that case, the Unite d States Supreme Court held that a search may precede a formal ar rest if the officer has probable cause to arrest at the time of the search an d the fruits of the search were not necessary t

o support probable cause to arr est. 8 See Warden v. State , 214 Tenn. 314, 320, 379 S.W .2d 788, 791 (1964) (search which precedes arrest will be up held if the tw

o may be reg arded as par t of one and the s

ame transaction).
In this case, there is no q uestion that Officer Moniz had probable cause to arrest Crutcher at the s cene of the accident for reckless endangerment and evading arrest. Mo reover, none of the items disc overed during the sear ch of9 The re cord ref lects that on the even ing of the a ccident C rutcher’s x-rays we re mis read. The error was discov ered the next day, and the hospital called pol ice and asked that Crutcher be returned t

o the hospit

al for treatment of a fr actured vert

ebrae.
10 I disagree with the

majority’s decisi on to overrule State v. Moore , 949 S.W.2d 704, 706 (Tenn. Crim. App. 1997 ), a decision in which t he intermediat

e appellat

e court uphel d a search under c ircum stance s sim ilar to those p resent in th is case. -11- Crutcher’s motorcyc

le were necessary or relevant to establi sh probable cause to arrest for those two offenses. Clearly, therefore, the of ficers had probable cause to arrest Crutcher at th e scene of the accident. Moreov er, the record establishes that Crutcher was rel eased that same evening from the ho spital to the custody of the Drug Task Force and r emained in police custody u ntil the next day w hen he was returned to the hospital. 9
Though there is no bright-line rule, I would co nclude that the search and arrest in this case w

ere part of one and the same transacton because the delay between the two was caused solely by the d efendant’s need for medical treatment. Accordingly, even assuming Crutc her was not arrested at the scene, as the majority concludes , I would hold the search valid as incident to a lawful arrest under th e reason ing of Rawlings

. 10

CONCLUSION Because I am of the opinion that the warrantless search of the defendant’s motorcycle was v

alid as a search incident to a lawful arrest, I r espectfully dissent from the majority decision. I would reverse the decisions of the lower courts which ordered suppression of the ev idence and remand this cause to th e trial court for further proceedings.-12- I am authorized to state that Justice Holder concurs in this Dissenting Opinion.

______________________________ FRANK F. DROWOTA III, JUSTICE

Concur: Holder, J.