### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON April 10, 2001 Sessi

on 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 qu

estion of law, the t

rial court’s den

ial of his motion to sup

press 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 incide

nt 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
J OHN E VERETT W ILLI AMS , J., delivered the opinion of the court, in which J OE G. R ILEY and R OBERT W. W EDEMEYER , JJ., joined. Charles S. Kelly

, Sr., Dyers

burg, Tennesse

e, for the appell

ant, Earnest Cunni

ngham.
Paul G. Summers, Attorne y General & Reporter; J. Ross D

yer, Assista

nt Attorney G

eneral; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee

.

OPINION
The defendant, Earnest Cunningham, was indicted by the Dy er 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 Dec ember 18, 1999.
With consent of the court and the Dist rict Attorney General, on February 11, 2000, the defendant pled guilty to violating Tennessee Code Anno tated sect ion 39-17-417, possession of cocaine over .5 grams, r eserving the ri

g ht to appeal a

certified question of law regarding the suppression of the cocaine. Also on February 11, 2000, t he trial court e

ntered a judgment on the-2-

guilty plea, which cros s-reference d an order simulta

neously filed that set out the specific nature of the certified question.
This order specific

ally stated t

hat t he questio n reserved is disp ositive of the cas

e and is reserved with consent of the

court and the Distr

ict Attorney

General. The specific question reserved is whether the tria

l court erred in d

enying the

defendant’s moti

on 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 se

t forth in State v. Presto n , 759 S.W.2d 647 (Tenn. 1988) and State v. Penderg rass , 937 S.W.2d 834 (Tenn. 1996). See also

Tenn. R. C ri m. 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 revie w.
Facts
On February 18, 1999, the defendant was at the L ane Grocery

and Restaurant and had consumed several alcoholic beverages. The owner of the restaurant determined that the defendant should not be servedany 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 Depa rtment to report

the incident. Prior to any officers arr iving, the owner asked the d efendant to leave and the defendant was ultimately escorted outside to the porch.
Officer

Chad Barron responded

to the call at the resta

urant after re

ceiving a dispa

tch that a man was intoxicated and causing problems. As Office r Barron pul led into the parking lot, he witnessed the defendant stu mble off the porc

h and st art walking acr oss the parking lot. Officer Barron then sp oke wi th the defendant and smelled an odor of alcohol about his person. He then ascertained

that the defendant was the one cau sing problems. As Officer Barron spoke with the defendant,

he noticed the defendant’s speech was slurred. He de term ined that the defendant was intoxicated and possibly posed a danger to himself and others. Officer B arron then placed the defendant under arrest. Subsequent to placing the defendant in custody, Offic er Barron checked the defendant’s pockets and found a plastic wrapper containing eight packag es of cocaine. Analysis
The d efenda nt 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. Oh io , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The S tat e contends, however, tha t 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. 2 d 685 (1969); State v. Crutcher , 989 S.W.2d 295, 300 (Tenn. 1999).-3-

A person commits the offense of public intoxication when they appear “in a p ublic pl ace under the influence of a controlled substance or any other intoxicating substa

nce to the degr

ee that: (1) [t]he offender

may be endangered; [or] (2) [t]here is endangerment to other per sons 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 war rant, arrest an individual who has commit ted a misdemeanor in their presence, see Tenn. Code Ann. § 40-7- 103(a)(1), police officer

s must issue a citatio

n and may not

e ffect a full

custodial arrest for a misdemeanor

violation unless one of the eight exceptions apply. See Tenn. Code Ann. § 40-7-118, Statev. Chearis , 995 S.W.2d 641, 644 (Tenn. Crim. App. 1999). The exception relied upon by the Stateis Tennessee Code Annotat ed section 4 0-7-118(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 Gro cery, 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 havingtrouble 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 Stat e that the o fficer made a valid full custodial arrest of the defendant.
As this court has previously held, we grant trial courts considerable def erence in reviewing its findings on these issues in suppression hearings beca use such courts a

re uniquely

positioned to observe the demeanor and conduct of witnesses. See State v. Moats , 906 S.W.2d 431, 435 (Tenn 1995). These findings w ill be upheld unless

the evidence pr

eponderates oth erwise. See State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). In reviewing the record before us, we conc lud e that th e ev i dence does not preponderate against the trial court’s finding that this was a valid full custodial arrest.
Because

we agree with

the trial court tha

t this was a valid full custodial arrest, we must now analy ze 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. Oh io , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). However, Terry applies to investigatory

stops based upon re

asonable sus picion, not searches done incident to an arrest. See id. When officers make a lawfu l ful l custodial arrest of a person, they may search the pe rson 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 unde

r lawful full custodial arrest, and therefore, the search of his pockets revealing the coc aine was a valid search.
Conclusion
Because the officer made a lawful full custodial arrest of the defendant and searched the defendant incident to this law

ful full custodial a

rrest, the trial c

ourt correctly

denied the defendant’s-4-

motion to suppress

the cocaine seize

d as a result of the search. We affirm the judgment of the trial court.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE