IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

STATE OF TENNESSEE, ) FOR PUBLICATION ) Appellee, ) FILED: February 14, 2000 ) v. ) MAURY COUNTY ) AVERYWALKER, ) HON. JAMES L. WEATHERFORD, JUDGE ) Appellant. ) NO. M1996-00046-SC-R11-CD

For Appellant : For Appellee : JOHN S. COLLEY, III PAUL G. SUMMERS Columbia, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General ELIZABETH B. MARNEY Assistant Attorney General Nashville, TN T. MICHAEL BOTTOMS District Attorney General J. LEE BAILEY, III Assistant District Attorney Columbia, TN

OPINION

JUDGMENT OF THE COURT OF CRIMINAL APPEALS IS REVERSED; JUDGMENT OF THE TRIAL COURT IS REINSTATED. BIRCH, J.



# FILED February 14, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk1 Tenn. C ode Ann. § 40-7-118 (1997). The pertinent part of

this statute reads that “[a] peace officer who has arrested a personfor the commission of a misdemeanor committed in such peace officer’s presence . . . sha ll issue a citation to such arrested personto appea r in court in lieu of the continued custody and taking of the arrested person before a magistrate.” Tenn. Code Ann. § 40-7-118(b)(1). For purposes of clarity in this opinion, we use “custodial arrest” to refer to the act of taking the defendant into custod y, th ereby avoiding the use of the term “arrest” as a stand-alone term.

2 Tenn. Code Ann. § 40-7-118(c)(3)(Sup p . 1999)(“No citation shall be issued under the provisions of this section if . . . [t]he person arrested cannot or will not offer satisfactory evidence of identification, including the providing of a field-administered fingerprint or thumbprint which a peace officer may require to be affixed to any citation . . . .”).

3 Throughout the testimony, argument of counsel, and the opinionof the Court of Criminal Ap peals, the words “driver’s license” and “identification” are used interchangeably. We wil l attempt to be specific. 2 I. INTRODUCTION
The statute pertinent here provides that an officer who observes the commission of certain misdemeanors must cite and release the misdemeanant rather than effecting a custodial arrest. 1 There are, however, exceptions to this statute. The exception relevant here authorizes an officer to effect a custodial arrest of
a misdemeanant whe n t hat person “cannot or will not offer satisfactory evidence of identification . . . .” 2

We accepted review to clarify the “identification exception” to our “cite and release” statute. To clarify this exception, we must determine whether the police officer in the case at bar was justified in concluding that the identification 3 evidence offered by the misdemeanant was unsatisfactory under Tenn. Code Ann. § 40-7-118(c)(3).

After carefully considering the entire record as well as the purpose of the “cite and release” statute, we conclude that an objective standard of reasonablenes s sh ould be used to determine whether evi dence of identification offered to an officer by a4 A “citation” is defined as “a written order issued by a peace

officer requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time. Such order shall require the signature of the person to whomit is issued. . . .” Tenn. Code Ann. § 40-7-118(a)(1) (1997). 3 misdemeanant is satisfactoryevidence of identification within the meaning of the statut e. Under this standard, we find that the evidence of identification offered by Avery Walker, the defendant, constituted satisfactory pr oo f of identification and that the officer should not have effected a custodial arrest. For the
reasons expressed herein, the custodial arrest and the search incident to it violated the Fourth Amendment of the United States Constitution and Article I, § 7 of the Tennessee Constitution. Therefore, the e vidence seized as a result of the search must be suppressed. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court.

II. BACKGROUND

A. Facts

OnMarch 29, 1994, Avery Walker drove his gir lfri end’s car to a convenience market to purchase a soft drink. The volume of the car radio was noticeably high. Bill Gault, a police officer for the City of Columbia, heard the radio as Walker pulled up and parked. As Walker entered the market, Gault approached him. Gault said “something” to Walker about the radio being too loud, but W alker did not understand him. When Walker returned to his car , Gault was standing beside it. Gault then began to interrogate Walker.
Gault told Walker that he was in violation of a City of Columbia nois e ordi nance and that a citation would be issued. 4 Gault then asked Walker who owned the car. He also asked for4

Walker’s dr iver ’s license and vehicle registration. Walker told Gault that he did n ot ha ve the vehicle registration and that the car belonged to his girlfriend. Also, he stated that he had left his wallet containing his driver’s licens e at his mother’s home, about two blocks away.

Walker then g ave Gault his name, date of birth, and driver’s license number. Additionally, he offered to go home and get his lic ense. Walker also suggested that Gault follow him to his mother’s house so that he could get his license. Neither of these options were acceptable to Gault. Gault did, however, speak witha police dispatcher about the inf ormation Walker had given him. The dispatcher validated the information furnished by Walker and informed Gault that the license bearing the number Walker had given was a valid license.

Althoughthe dispatcher had verified Walker’s information, Gault decided to take him into custody for violating the noise ordinance. Gault searched Walker. As a result of this search, Gault found marijuana and a substance containing cocaine. Gault testified that he would have given Walker a citation and released him but Walker did not have his driver’s license or other identification with him.

B. Procedural History
1. Suppression Hearing

Walker moved to suppress the evidence obtained as a result of the search. He asserted that Gault shoul d hav e issued hima citation in lieu of custodial arrest, a procedure authorized byTenn. Code Ann. § 40–7-118(b)(1). Asserting that a custodial arrest was not warranted, Walker insists that t he search was5

unconstitutional. Following an evidentiary hearing in whichGault and Walker testified, the t ria l court granted the motion and ordered th e evid ence suppressed. The order did not, however, include essential findings as required by Tenn. R. Crim. P. 12(e).

Ondirect review, the Court of Criminal Appeals concluded that Walker had failed to provide the offic er with satisfactory evidence of identif icatio n. Thus, the court held both the custodial arrest and the subsequent search constitutional.
2. Contentions on Appeal

Onappeal to this Court, Walker contends that the search and seizure of evidence vio lat ed Tenn. Code Ann. § 40-7-118. Therefore, Walker insists that his custodial arrest and the subsequent search of his person were unconstitutional and the evidence seized as a result of the search should be suppressed. The basis of this contention lies in Walker’s assertion that he did, in fact, offer Gault satisfactory evidence of identification as required by Tenn. Code Ann. § 40-7-118.

On the other hand, the State urges that the evidence of identification offered by Walker was not satisfactory becau se o f Walker’s inability to demonstrate that he was the same person to whom Tennessee license number 65952203 belonged. Thus, the State urges the legalit y of the custodial arrest and the constitutionality of the subsequent search.

III. STANDARD OF REVIEW

This case terminated with t he trial court’s order suppressing evidence obtained when Walker was searched. Although the order was entered without findings of fact, the facts are5 Gault testified that he had little personal re collection of

Walker and did not recall checking any information with the dispatcher. The dispatcher’s testimony and the records from the Cityof Columbia police dispatcher reflect that Gault did check the license number and information Walker claims to have given. Moreover, Walker testified that this information was verified. The State offere d no evidence to refute Walker’s testimony. Additionally, we recognize tha t the trial court determined the credibility of the witnesses, weighed the evidence, and concluded that the State had failed to meet its burden of demonstrating that the identification evidence offered by Walker was unsatisfactory. This conclusion is entitled to great deference so long as it is consistent with our conclusions based on ap plicab le law. See Crutcher , 989 S.W.2d at 299 (citation omitted). Additionally, the trial court’s conclusions suggest that although the trial court entered its order without findings of fact, the court fully accredited Walker’s testimony.

6 Tennessee Code Annotated § 40-7-118 u ses the t erm “peace officer.” A peace officer is “ an officer , employee or agent of government who has a dut y imposed by law to: (i) Maintain public order; (ii) Make arrests for offenses, whether that duty extends to all offenses or is li mited to specific offenses; and (iii) Investigate the commission or suspected commission of offenses[.]

. . . Peace officer also includes an officer, employee or agent of government who has the duty or responsibility to enforce laws and regulations pertaining to forests in this state.” Tenn. Code Ann. § 40-7-118(a)(3)(A) & (B) (1997). For the purpose of this opinion the term “officer” is used synonymously with “peace officer.”

7 Under T enn. Code Ann. § 40-7-118 there are two types of arrests at issue. The first type of arrest is the brief seizure 6 uncontroverted. 5 As such, we review only questions of law. These questions are reviewed de novo
. See State v. Crutcher , 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

IV. DISCUSSION

A. The “Cite and Release” Statute; Tennessee Code Annotated

§ 40-7-118

Anofficer who observes an individual committing a public offense or a breach of the peace may, without a warrant, arrest the individual. Tenn. Code Ann. § 40-7-103(a)(1) (Supp. 1999). Under Tenn. Code Ann. § 40-7-118(b)(1), however, when an officer 6 observes the commission of certain misdemeanors, the officer is required to cite and release the misdemeanant in lieu of effecting
a custodial arrest. 7 Accordingly, the Tennessee “cite and release”and detention of an individual while the officer issues a citation.

See Tenn. Code Ann. § 40-7-118(b)(1) (1997); see also People v. Bland , 884 P.2d 312, 316 n.6 (Colo. 1994); People v. Superior Court of Los Angeles County , 496 P.2d 1205, 1215 (Cal. 1972). The second type of arrest is described as “continued custody” of an already arrested indi vidu al. Tenn. Code Ann. § 40-7-118(b)(1) (1997). This continued custody of a person already arrested (subjected to a brief seizure and detention) is a custodial arrest. See id. ; see also State v. Chearis , 995 S.W.2d 641, 643-44 (Tenn. Crim. App. 1999). 7 statute creates a presumptive right to be cited and released for the commission of a misdemeanor. See State v. Slatter , 423 N.E.2d 100, 104 (Ohio 1981) (considering an Ohio “cite an d release” statute virtually identical to our own, the Ohio court held that the Ohio statute “cre ate [s] a substantive right of freedom from arrest for one accused of the commission of a minor misdemeanor unless one of the statutory exemptions exists.”).

There are, however, eight exceptions to the “cite and release” statute that require an officer to disregard the “cite and release” procedure and effect a custodial arrest. See Tenn. Code Ann. § 40-7-118(c) (1997). The exception here pertinent requires the custodial arrest of a misdemeanant who “cannot or will not offer satisfactoryevidence of identification . . . .” Tenn. Code Ann. § 40-7-118(c)(3) (1997). Thus, this Court is presented with
a d iffic ult issue of first impression: What is the standard for determining what constitutes “satisfactory evidence of identification” under Tenn. Code Ann. § 40-7-118(c)(3)?

B. The Standard for Determining Satisfactory Evidence of

Identification in Tennessee
1. Case Law of Ohio

Although this Court is presented with an issue of first impression, courts of other jurisdictions with simil a r statutes have found it necessary to craft a standard by which to determine what constitutes “satisfactory evidence of identification.”8 Ohio’s “cite and release” statu te a nd identification

exceptionis substantially similar to our own and is found at Ohio Rev. Code Ann. § 2935.26.

9 In evaluating a different statute with similar language, Ohio courts have applied the same objective test. For example, in State v. DiGiorgio the Ohio Court of Appeals considered what constituted satisfactoryevidence or proof under Ohio Rev. Code Ann. § 4507.35. 689 N.E.2d 1018 (Ohio Ct. App. 1996). The court reasoned that “courts must apply a standa rd o f objective reasonableness in determining what type of proof is satisfactory.” Id. at 1020. 8 Althoughnot as persuasive as an opinion from the Ohio Supreme Court would have been, the standard enunciated by the Ohio Court of Appeals offers compelling guidance.

In State v. Satte rwhi te , the Ohio Court of Appeals considered the identification excep tio n to Ohio’s “cite and release ” sta tute. 8 704 N.E.2d 259 (Ohio Ct. App. 1997). In Satterwhite , a police officer stopped the defendant for jaywalking. Id. at 260. The defendant was asked if he had any identification, and he answer ed “no.” Id. He was arrested, placed in a police vehicle, and searched. Id. The defendant was then asked for his name and social security number, both of which he gave. Id. The officer verified the defendant’s name, social security number, and physi cal description using a computer in the vehicle. Id . Th e trial court found that the defendant had been denied an opportunity to offer satisfactory evidence of his identity because the officer had not attempted to ascertain his identity before placing him in the vehicle. Id. The Court of Appeals agreed, reasoning that an objective standard of reasonablenes s should be used when determining what evidence of identification is satisfactory. Id. at 261. As posited by the Satterwhite Court, “the inquiry should be whether the police officer is ob ject ively reasonable in rejecting the co mputer information as satisfactory proof of identitywhen the computer verifies the informa tion that the officer has been given.” Id. 910 It is the prosecution’s burden to prove that the rejection

of identification was objectivelyreasonable. See Tenn. Code Ann. § 40-7-118(j) (1997)(“Whenever an officer makes a physical arrest for a misdemeanor and the officer determines that a citation cannot be issued because of one (1) of the eight (8) reasons enumerated in subsection (c), the officer shall note the reason for not issuing a cit ation on the arrest ticket.”); see also Satterwhite , 70 4 N.E.2d at 260 (citing State v. Satterwhite , No. 14699, 1995 WL 29200, at *2 (Ohio Ct. App. Jan. 25, 1995) (“[T]he state has the burdenof demonstrating the e xi stence of the statutory exemption.”)).

11 But see Monroe , 16 Cal. Rptr. 2d 267 (where a majority of the California Court of Appeals reasoned that s atisfactory evidence under Cal. Veh. Code § 40302 was either a driver’s license or the functional equivalent (documentation bearing a photograph and descriptionof the individual, his or her signature, and current mailing address) and if neither form of identification is presented it is left to the discretion of the officer to determine if the identification presented is satisfactory). Monroe was subsequently criticized by the California Court of Appeals in People v. Nava . The Nava court determined that oral verification of identification could satisfy the satisfactory evidence requirement. 22 Cal. Rptr. 2d 600, 610-11 (Cal. Ct. App. 1993). 9 2. Adopting an Objective Test

Ado pting the Satterwhite rationale, we hold that unde r Tenn. Code Ann. § 40-7-118(c)(3), it is the State’s burden to prove 10 that it was objectively reasonable for the officer to reject
a misdemeanant’s proffered identification evidence. By objectively reasonable, we mean that in rejecting the e vid ence, the officer should have a “specific articulable reason to doubt that the cited personhas accurately identified himself [or herself] before taking him[or her] into custody.” People v. Monroe , 16 Cal. Rptr. 2d 267, 286 (Cal. Ct. App. 1993) (Smith, J., dissenting). 11

C. The Purpose of the Tennessee “Cite and Release” Statute

The objective standard adopted by this Court is supported bythe purpose of the “cite and release” statute and its identification exception. When an officer observes the commission of certain misdemeanors, the officer is required to issue a citation in lieu of custodial arres t. Tenn. Code Ann. § 40-7- 118(b)(1) (1997). The misdemeanant must sign the citation,12 California’s “cite and release” statute is similar in man y

respects to our own “cite a nd r elease” statute and is found in various subsections of Cal. Penal Code and Cal. Veh. Code § 835 and at § 40302. 10 requiring him or her to appear in court on a specified day and time. Tenn. Code Ann. § 40-7-118(a)(1) (1997). The result is that individuals who have committed relatively minor offen ses are released, but onlyonthe “promise” that they will appear in court. This permits “allowing the use of jail space for dangerou s individuals and/or felons. . . .” Tenn. Code Ann. § 40-7-118(m)(3) (1997).

Inessence, Tennessee’s “cite and release” statute works
on an “ honor system,” operating under the assumption that the misdemeanant will act in good faith by furn ishing accurate identification so th at an officer can be assured that the misdemeanant is actually the person he or she claims to be. See Tenn. Code Ann. § 40-7-118(c)(3) & (b)(1) (1997); see also Superior Court of Los Ange les County , 496 P.2d at 1216; Monroe , 16 Cal. Rptr. 2d at 284-85 (Smith, J., d issenting) (finding that California’s “cite an d re lease” statute works on an “honor system”). 12 The exception empowers an officer to effect a custodial arrest only when the identi ty of a misdemeanant is in doubt, but not solely because a misdemeanant is not carr ying approved “government papers.” See Satterwhite , 1995 WL 2 9200, at *1. To this end, an officer’s discretion is limited. An officer may not make unreasonable or arbitrary determinations as to what constitutes satisfactory evidence of identification. See Monroe ,16 Cal. Rptr. 2d at 286 (Smith, J., dissenting).

D. The State’s Conten t ion: Reliable Corroboration of an

Individual’s Physical Identity
The State takes issue with the Court of Criminal Appeals’s finding that a misdemeanant is required to provide some11

formof photographic evidence under Tenn. Code Ann. § 40-7- 118(c)(3) and insists that this Court adopt an objective standard. However, the State contends that “when no tangible proof is available, an individual should be required to establish his or her identity by reasonably reliable corroboration of the individual’s physical characteristics in addition to verbal information.”

Under the State’s contention, it is difficult to conceive of a case where a misdemeanant could establishhis or her identity bycorroboration of his or her physical characteristics without
some form of photographic proof. Essentially, therefore, the State would require misdemeanants to present another form of photographic evidence to meet the “satisfactory evidence” requirement. We reject the notion that, in all cases, an officer’s rejection of evidence of identification will be objectively reasonable i f th e misdemeanant did not offer addit ional proof of physical characteristics.

It is not unusual for one to forget to carry one’s driver’s license or other document describing physical characteristics. As the California Supreme Court noted:

[a common] explanation for a motorist’s failure to have his [or her] license with him [or her] is the most obvious, i.e., that he [or she] inadvertently left it in a different suit of clothing . . . Suchoccasional forgetfulness is a fact of human nature, no doubt reinforced by the pressures and demands of modern life. Indeed, we daresay that at one time or another virtuallyevery motorist has suffered the minor embarrassment of leaving his [or her] license at home. Superior Court of Los Angeles County , 496 P.2d at 1211-12. Because it is common for individuals to forget their license or other evidence of physical characteristics, “[o]ral e videnc e as an12

alternative means of identification necessarily forms an integral part of the honor system” in our “cite and release” statute. Monroe , 16 Cal. Rptr. 2d at 285 (Smith, J., dissenting); see also Nava , 22 Cal. Rptr. 2d at 610-11 (finding that verbal identification can constitute satisfactory evidence of identification under California’s “cite and release” provisions).

Inthis age of computers, officers have a variety of reliable methods at their disposal by which to verify the identity of a misdemeanant who cannot display a driver’s license or other proof of his or her physical characteristics. Monroe , 16 Cal. Rptr. 2d at 285 (Smith, J., dissenting). For example, a misdemeanant may still be able to provide a n off icer with a full name, address, date of birth, and, possibly, a driver’s l ice nse number. An officer may relay this information to a dispatcher and, in a matter of minutes, determine if the record on file matches the description of the misdemeanant. See id.

If the information given by the misdemeanant does not matchthe address, birth date, or driver’s license number, the officer’s decision to reject such data as satisfactory evidence of identification may indeed be objectively reasonable. Moreover, if the information given does match the record, but there is some other objective reason for qu esti oning the accuracy of the misdemeanant’s identification, an officer’s decision to reject the evidence may also be deemed proper. Additionally, an officer may test a misdemeanant on the information he or she gives concerning residence, telephone number, social security number, and/or place of employment. See id.

This is not to say, however, that photographic proof or additional evidence of a misdemeanant’s physical characteristics will never be necessary. In some cases corroboration of an13

individual’s identity beyond oral representations maybe necessary. Nonetheless, an officer’s decision to reject a misdemeanant’s oral representations is evaluate d un der an objective standard, and an officer must make all reasonable efforts to verify a misdemeanant’s identity. A cco rdingly, the determination of whether verbal representations supply satisfactory evidence of ide ntit y must be made on a case-by-case basis.

E. The “Cite and Release” Statute and the Fourth Amendment

Awarrantless search is presumed unreason able and thus violates the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution. See Coolidge
v. New Hampshire , 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032, 29 L. Ed. 2d 564, 576 (1971); see als o Yeargan , 958 S.W.2d at 629. An exceptionto the warrant requirement is a search incident to a lawful custodial arrest. When an officer places an individual under lawful custodial arrest, an officer is permitted to make a warrantless search incident to the custodial arrest. S ee Uni ted States v. Robinson , 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38 L . Ed. 2d 427, 440-41 (1973); see also Crutcher , 989 S.W.2d at 300. If an individual is unlawfully placed under c ust odial arrest, a subsequent search is also unlawful and evidence seized as a result of the unlawful search is suppressed and not admissible in the prosecution’s case in chief. See Wong Sun v . United States , 371 U.S . 471, 484-85, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 45 3-5 4 (1963); see also State v. Clark , 844 S.W.2d 597, 600 (Tenn. 1992); Tenn. R. Crim. P. 41(f).

As discussed, an officer is to issue a citation in lieu of custodial arrest unless the misdemeanant is unable to offer satisfactory evidence of his or her identification, in which case the off icer must place the misdemeanant under full custodial14

arrest. Te nn. Code Ann. § 40-7-118(b)(1) & (c)(3) (1997). An officer makes a lawful custodial arrest, under Tenn. Code Ann. § 40-7-118(c)(3), when it is objectively reasonable to reject the evidence offered as proof of identification. In such cases a warrantless search incident to the custodial arrest is permitted. If, however, anofficer’s rejection of the evidence is objectively
unreaso nable, the custodial arrest and subsequent search are
un lawful, and evidence gained as a result of the searc h must b e suppressed.

F. The Case at Bar

Inthe case at bar, the State has failed to show an objective reason for Gault to reject the evidence offered by Walker
as proof of his identification. Though Walker did not have his driver’s license with him, he gave Gault his name, driver’s license number, and birth date. Gault verified this information with the dispatcher. Gault also verified the information Walker gave about the owner of the car and ch ecked the car’s license plate number. The State presented no evidence of an objective reason to doubt the reliabilityof this information. Moreover, the trial court, which is in the best position to consider the evidence concerning Walker’s identity, concluded that Gault had no objective gr ound s for questioning Walker’s identity. Therefore, under Tenn. Code Ann. § 40-7-118(c)(3), Gault wrongly placed Walker under custodial arrest. Because the custodial arrest was unlawful, the search incident to the arrest was also unlawful, and the seized evidence must be suppressed.

V. CONCLUSION

Todaywe adopt an objective standard for determining what constitutes satisfactory evidence of identification under Tenn.15

Code Ann. § 40-7- 118(c)(3). Applying this objective standard to the case at bar, we find that Gault’s rejection of the eviden ce offered to him as proof of Walker’s identity wa s o bjectively unreasonable. Therefore, both the custodial arrest of Walker and the subsequent search were unconstitutional, a nd the evidence seized must be suppressed. Accordingly, and for the aforementioned reasons, the decision of the Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated.

Costs of this appeal are taxed to the State of Tennessee.

______________________________ ADOLPHO A. BIRCH, JR., Justice CONCUR: Anderson, C.J. Drowota, Holder, Barker, JJ.