IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 10, 2001 Session

STATE OF TENNESSEE v. EARNEST CUNNINGHAM

Direct Appeal from the Circuit Court for Dyer County

No. C-99-179 Russell Lee Moore, Jr., Judge

No. W2000-00343-CCA-R3-CD - Filed July 16, 2001

The defendant appeals, via certified question of law, the trial court’s denial of his motion to suppress

cocaine seized as a result of a warrantless search of the defendant’s pockets. Because the officer

made a lawful full custodial arrest of the defendant and searched the defendant incident to this lawful

full custodial arrest, we affirm the trial court’s denial of the defendant’s motion to suppress. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which JOE G.RILEY and ROBERT

W. WEDEMEYER, JJ., joined.

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Earnest Cunningham.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and C.

Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Earnest Cunningham, was indicted by the Dyer County Grand Jury on June

14, 1999, for violations of Tennessee Code Annotated section 39-17-310, public intoxication, and

Tennessee Code Annotated section 39-17-417, possession of cocaine over .5 grams with intent to

sell or deliver. On September 3, 1999, the defendant filed a motion to suppress the cocaine, which

was seized upon his arrest for public intoxication. A hearing on the motion was held on October 26,

1999, and the trial court entered an order denying the motion on December 18, 1999.

With consent of the court and the District Attorney General, on February 11, 2000, the

defendant pled guilty to violating Tennessee Code Annotated section 39-17-417, possession of

cocaine over .5 grams, reserving the right to appeal a certified question of law regarding the

suppression of the cocaine. Also on February 11, 2000, the trial court entered a judgment on the
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guilty plea, which cross-referenced an order simultaneously filed that set out the specific nature of

the certified question. 

This order specifically stated that the question reserved is dispositive of the case and is

reserved with consent of the court and the District Attorney General. The specific question reserved

is whether the trial court erred in denying the defendant’s motion to suppress the cocaine. Also listed

in the order are the specific grounds upon which the defendant contends the evidence should have

been suppressed. This judgment and accompanying order clearly met the requirements set forth in

State v. Preston, 759 S.W.2d 647 (Tenn. 1988) and State v. Pendergrass, 937 S.W.2d 834 (Tenn.

1996). See also Tenn. R. Crim. P. 37. The defendant filed his notice of appeal on February 11,

2000. Thus, the certified question of law is properly before this court for review.

Facts

On February 18, 1999, the defendant was at the Lane Grocery and Restaurant and had

consumed several alcoholic beverages. The owner of the restaurant determined that the defendant

should not be served any more alcohol. The defendant got upset and began causing trouble in the

restaurant. At one point, he squirted a waitress in the face and hair with ketchup. The waitress then

called the Dyer County Sheriff’s Department to report the incident. Prior to any officers arriving,

the owner asked the defendant to leave and the defendant was ultimately escorted outside to the

porch.

Officer Chad Barron responded to the call at the restaurant after receiving a dispatch that a

man was intoxicated and causing problems. As Officer Barron pulled into the parking lot, he

witnessed the defendant stumble off the porch and start walking across the parking lot. Officer

Barron then spoke with the defendant and smelled an odor of alcohol about his person. He then

ascertained that the defendant was the one causing problems. As Officer Barron spoke with the

defendant, he noticed the defendant’s speech was slurred. He determined that the defendant was

intoxicated and possibly posed a danger to himself and others. Officer Barron then placed the

defendant under arrest. Subsequent to placing the defendant in custody, Officer Barron checked the

defendant’s pockets and found a plastic wrapper containing eight packages of cocaine.

Analysis

The defendant asserts, via certified question of law, that the trial court erroneously denied

his motion to suppress the cocaine seized from him because the search that revealed the cocaine was

not valid. He contends that he was not arrested when he was searched and that the search violated

the parameters of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The State

contends, however, that the defendant was under custodial arrest for violation of Tennessee Code

Annotated section 39-17-310, public intoxication, when he was searched by the officer, and

therefore, the search was a valid search incident to custodial arrest. See, e.g., Chimel v. California,

395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969); State v. Crutcher, 989 S.W.2d

295, 300 (Tenn. 1999). 
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A person commits the offense of public intoxication when they appear “in a public place

under the influence of a controlled substance or any other intoxicating substance to the degree that:

(1) [t]he offender may be endangered; [or] (2) [t]here is endangerment to other persons or property.”

Tenn. Code Ann. § 39-17-310(a)(1), (2). Public intoxication is a Class A misdemeanor. Tenn. Code

Ann. § 39-17-310(b). Although police officers may, without obtaining an arrest warrant, arrest an

individual who has committed a misdemeanor in their presence, see Tenn. Code Ann. § 40-7-

103(a)(1), police officers must issue a citation and may not effect a full custodial arrest for a

misdemeanor violation unless one of the eight exceptions apply. See Tenn. Code Ann. § 40-7-118,

State v. Chearis, 995 S.W.2d 641, 644 (Tenn. Crim. App. 1999). The exception relied upon by the

State is Tennessee Code Annotated section 40-7-118(c)(7), which includes a person that is “so

intoxicated that such person could be a danger to such person or to others.” 

The evidence at the suppression hearing showed that when Officer Barron arrived at the Lane

Grocery, he saw the defendant stumble off the porch and start walking across the parking lot. The

officer spoke to the defendant and determined that he was intoxicated because he was unsteady on

his feet and was having trouble speaking. The officer testified that he felt like the defendant posed

a danger to himself and others, and therefore, he effectuated a full custodial arrest of the defendant.

The trial court agreed with the State that the officer made a valid full custodial arrest of the

defendant. 

As this court has previously held, we grant trial courts considerable deference in reviewing

its findings on these issues in suppression hearings because such courts are uniquely positioned to

observe the demeanor and conduct of witnesses. See State v. Moats, 906 S.W.2d 431, 435 (Tenn

1995). These findings will be upheld unless the evidence preponderates otherwise. See State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996). In reviewing the record before us, we conclude that the

evidence does not preponderate against the trial court’s finding that this was a valid full custodial

arrest.

Because we agree with the trial court that this was a valid full custodial arrest, we must now

analyze the basis for the warrantless search of the defendant. As previously noted, the defendant

contends that the search of his person violated the parameters of Terry v. Ohio, 392 U.S. 1, 88 S. Ct.

1868, 20 L. Ed. 2d 889 (1968). However,Terry applies to investigatory stops based upon reasonable

suspicion, not searches done incident to an arrest. See id. When officers make a lawful full

custodial arrest of a person, they may search the person arrested without obtaining a warrant. See

Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969); State v.

Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999). The defendant in this case was under lawful full

custodial arrest, and therefore, the search of his pockets revealing the cocaine was a valid search.

Conclusion

Because the officer made a lawful full custodial arrest of the defendant and searched the

defendant incident to this lawful full custodial arrest, the trial court correctly denied the defendant’s
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motion to suppress the cocaine seized as a result of the search. We affirm the judgment of the trial

court. 

___________________________________ 

 JOHN EVERETT WILLIAMS, JUDGE