# FILED
March 29, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9710-CC-00407 Appellee, ) ) FAYETTE COUNTY VS. ) ) HON. J. KERRY BLACKWOOD, KERRY LEE CHEA

RIS, ) JUDGE

) Appellant. ) (Possession of Cocaine with Intent ) To Deliver)

FOR THE APPELLANT: RICHARD G.

ROSSER 102 East Court Square Somerville, TN 38068-1436 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter MARVIN E. CLEMENTS, JR. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General 302 E. Market Street Somerville, TN 38068

OPINION FI LED:

REVERSED AND

DISMISSED

JOE G. RILEY, JUDGE1 Defendant frames his issues differently than they are addressed here.
2 Defendant, as a

passenger, wa

s not in violation of th

e state open conta

iner statute which only applies to drivers. See Tenn. Code Ann. § 55-10-416. 2 OPINION A Fayette County

jury found defendant guilty of possessio n of cocaine over 0.5 grams with in tent to d elive r, a Class B felony. The trial court sentenced defendant as a Range I I multiple o ffender to 16 y

ears in the Departme nt of Correction. In this appeal as of right, defendant raises the f ollowing issues: 1. w hether

the trial court erred i n failing to s uppres s evidence seized pursuant to defendant’s apprehension for violation of a city ordinance; 2. whether

the trial court erred in fail ing to suppress defendant’s statement to TBI Agent Francisco Hidalgo; 3. whet hert he evidence was sufficient to support the verdict of guilt; 4. wh ether

the trial court erred i n allowing redir ec t testimony

regarding the city ordinance that was the basis for defendant’s apprehension; 5. whether the trial court timely ruled on defendant’s pretrial motions; and 6. whether the 16-year sentence is proper. 1 We conclude that the search of defendant was improper. As a result, all evidence obtained as a result of that search must be suppressed. Due to this error, the trial court’s judgment is REVERSED and the case DISMISSED.

I. FACTS On November 22, 1996, defendant was th e passen ger in a car driv en by Zelner Seabe rry. T he car had no taillights and was stopped by Officer J ames D illard of the Somerville Police Department. Officer Dillard noticed an open bee r in defendant’s lap; allegedly a violation of a Somervi lle city ordinance. 2 Dillard called for backup, and Officer Marty Jones arrivedmoment s later. Officer Jones ordered defendant out of the ca r and took h im to the rear of the vehicl e. There, Jones searched defendant and found a packet o f crack co caine in defendant’s jacket pocket.3 II. MOTION TO SUPPRESS EVIDENCE Defendant contends the trial court er red in failing to suppress the cocaine found by Officer Jones during his search ofdefendant. According to Officer D illard, defendant was arrested for vi olation of a city ordinance prohibiting the possess ion
or consumption of alcohol in a public p lace. The state, therefore, contends the search was incident to anarrest. See State v. Bridges , 963 S.W.2d 487, 490 (Tenn. 1997). At the suppression hearing, the state did not introduce a copy of the municipal ordinance. Defendant contended then, and on appeal, that by failing to to do so, the state failed to carr y its burden of proof.

A. State’s Burden of Proof A warrantless search is presumed unreasonable under both the federal and state constitutions, and evidence seized from the warrantless search is subject to suppression unless the state demonstrates by a p repon derance of the evidence that the search was “conducted p ursuantto one of the narrowly defined e xceptions to the warrant requirement.” State v. Simpson , 968 S.W.2d 776, 780 (Tenn. 1998);
see Coolidge v. New Hampshire , 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). Tennessee Rule ofEvidence 202 enumerates law of which a court may take judicial notice. With regard to muni cipal ordinances, the rul e reads: Optional Judicial N otice of Law. ---Upon reasonable notice to adverse parties, a party may

requ est that the court take, and the c ourt may take, judicial notice of . . . all duly enacted ordinances of municipalities or other governmental s ubdivisions . . . . Tenn. R. Evid. 202(b)(3). The state’s witnesses tes tified that defendant was arrested for

viola tion of a Somerville city ordina nce prohi biting the possession or consumption of alcohol in
a public place. Howev er, in spite of defendant’s objecti on, at no time was a co py of that ordinance entered, or att empted to be entered, into eviden ce by the state. Nor do we find in the record notice by the state of its intent to reques t that judicial notice be taken of the ordinan ce. Given t he dictates of Rule 202, the trial court3 As recited in defendant’s appellate brief, the Somerville ordinance in question

reads: “It shall be unlawful for any person to drink, consume or have any open can o r bo ttl e of b eer o r in tox ica tin g li quo r in or o n an y pub lic str eet , al ley, avenue, highway, sidewalk, public park, public school grounds or other public places.” 4 could not take judicial

notice of the ordinance, nor can this Court. Thus, the state fail ed to prove by a preponderance of the evidence a legitimate basis f o r defendant’s arrest. Correspondingly, the state also failed to prove that the search
was conducted incident to a valid arrest. Therefore,the trial court erred i n denying the motion to suppress.

B. Effect of Ordinance Violation Even assumin g the city ordi nance read as rec ited by defendant

in his b rief, 3 and defendant was in violati on of the ordinance, we woul d still find the search to be improper. Generally, a citati on should be issued when there is a misdemeanor violation. Specificall

y, Tenn. Code Ann. § 40-7-118(b )(1) provides: “[an] officer who has arrested a per son for the commi ssion of a misdemeanor

committed in such . . . officer’s presence . . . shall issue a citation to such arrested person to appea r in court in lieu of [ ] continued custody . . . .” The code then enumerates eight circumstances in which a citation should not issue: (1) the arrestee requires medical care, or is unable to care for his own safety; (2) the offense would continue or resume, or the arrestee would endanger p ersons or property; (3) the ar restee c annot offer satisfactory evide nce of identification; (4) prosecution of the offense would be jeopardized; (5) there is a reasonable likelihood that the arrestee will fail to appear in court; (6) the arre stee demand s to be taken immediately to a magistrate, or refuse s to sign the citation; (7) the arrestee is so intoxicated that he could be a danger to hi mself or others; or (8) ther e are one or more outstanding arrest warrants for the arrestee. Tenn. Code Ann. § 40-7-11 8(c). There is no evidence that defendant’s situation falls within any of these exceptionsto the citation requirement. Nor is there evidence of facts consis tent with the “historical ratio nales for the ‘search incide nt to arrest’ exception: (1) the need to d isarm the susp ect . . . and (2) the need to pr eserve evidence for lat er use at5

trial.” Knowles v. I owa , ___ U.S. ___, 119 S.Ct. 484, 488 (1998). Had the officers issued the required citation to defendant, all evidence necessary to prosecute the violation of the city ordinance w ould have been obtained. See Knowles , 119 S.Ct. at 488. Under these circumstan ces, the officers were li mited to issuing a citati on to defendant rather than effecting a full cus todial arrest. This is not to say the officers were unreasonable in thei r request to have defendant exit the car. It is well-recogniz

ed thatfo r the purp ose of of ficer saf ety, both the driver and

passenger may be ordere d out of a v

ehicle in the c

ourse of a routine traffic stop. Knowles , 119 S.Ct. at 488 (citations omitted). Furthermore, the officers would not be prohibited from performing a Terry patdown had there been reasonable suspicion that defendant was ar med and d angerous. Knowles , 119 S.Ct. a t 488; Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.E d.2d 889 (1968)

. However, the evidence does not establish that the officers believed, or had any reason to believe, the defendant w as armed and dangerous. The crucial issue

can be easily understood in another context. If a person i s “jaywalkin g” in violation of a city ordinance, an officer cer tainly has the right

to approach and cite the “jayw al ker.” Howe ver, the offi cer has no r ight to per

form a patdown search of the “jaywalker” absent a reasonable suspicion the “jaywalker” is armed and dangerous. In conclus ion, the re is no proof of a ny facts which woul d justify the warrantless search of defendant. Thus, the evidence seized in the search must be suppressed. Alth ough this issue is dispositive and requires reversal and dismissal, w e address defendant’s remaining issues in the event of an appeal to the Tennessee Supreme Court.

III. MOTION TO SUPPRESS STATEMENT Defendant claims

the trial court also er

red in failing to

suppress his statement to TBI Agent Francisco Hidalgo. On June 16, 1997, Agent Hidalg o, unaware o f defendant’s present charge, went t o the Fayette County jail to see defendant.6

Hidalgo needed a photograph and f ingerprin ts in order to close the TBI file on defendant’s unrelated charges. Dur ing their encounter at t he jail, defendant revealed information to Agent Hidalgo about the present charge. At the suppression hearing, defendant testified that h e was told someone wante d to see him. He was broug ht downstairs wher e he expected to see hi s lawyer, but instead found Agent Hidalgo. Ricky Wilson id ent ified defendant for Hidalgo and then helped fingerprint andphotograph defendant. Defendant asserts he neither r equested an intervi ew, nor was he given a choice whether to meet with the agent. Hidalgo asked d efendant to answer some ques tions and sign papers, but defendant refused and asked for h is attorney. W hen Hidalgo read the Miranda waiver to defendant, he si gned them but continued asking for an attorney. AgentHidalgo also testified at the suppress ion hearing. His testimony indicated that the purpose for his vi sit to the jail that day was to close out

his file on defendant’s unrelated case. When defendant was brought dow nstairs, the agent identified himself to defendant. While preparing the finger printing machine, Agent Hid algo inform ed defendant of his Miranda rights. Defendant then told the agent he wanted to talk to him pri vately. Once they

were alone, defendant gave Agent Hidalgo information about se veral people involved in dr ug trafficking and volunteered information relating to the present case. According to Hidalgo, he did not solicit this informati on. The trial court overruled the motion to suppress the statement but made no findings of fact on the issue. This precludes any meaningful appellate rev iew and would ordinarily

require a remand for findings. Regardless, defendant’s statement to Hidalgo,as it related to the present case, revealed no prejudici al information. Essentially , defendant admitted only that there were drugs on his person the night of his arrest by the Somer ville police; a

fact that the state clearly established at trial. If the trial cour

t erred in failing

to suppress this statement, such error would have been harmless. Tenn. R. App. P. 36 (b).

IV. SUFFICIENCY OF THE EVIDENCE7 Defendant asserts there was i nsufficient evidence to c onvict him of posses sion o f cocaine with intent to deliver. When reviewing the trial court's judgment, this Court will not disturb a verdict of guilt unless the facts of the record and inferences which may be drawn from it are insufficient as a matter of law for a rational trier of fact to find the defendant guilty beyond a r easonable doubt. Jackson
v. Virginia , 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560(1979); Tenn. R. App. P. 13(e); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In this instance, police found 1.7 gramsof crack cocaine in defendant’s jacketpocket, and no paraphernalia or appara t us indicative of personal use. Addition ally, they found abag containing 5.1 gr ams of baking soda, which testimony revealed is an agent us ed in the manufacture of crack cocaine. Furthermore, the jurycan infer an intent to sell or dispense drugs based upon the amount of dr ugs possessed by defendant. Tenn. Code Ann.§ 39-17-419. Taking this information in the lig ht most favorable to the state,evidence was sufficient to convict defendant of possessin g cocaine with intent to deliver. Thi s issue is without meri

t.

V. REDIRECT TESTIMONY Defendant complains that the trial c ourt err ed in allowing Officer Dillard to testify on redirect examination regarding the city ordinance which wa

s the basis for the search of defendant. The admissibility of testi mony and other evidence, as well
as the scope of

redirect examination, is within the discretion of the trial court, whose ruling will not be rever

sed absent an abuse of that discreti on. State v. Barnard , 899 S.W.2d 617, 624 (T enn. Crim. App. 1994). The defense “opened the door” to Dil lard’s testimony by eliciting on cros sexamination the basis for the search. The tri al court did not abuse its discretion by allowing the state to attempt to clarify that testi mony in its redirect examination. This issue is without merit.

VI. PRE-TRIAL MOTIONS8 Defendant further contends that the trial court erred in failing to enter a written order regarding his pl ethora of pre-trial motions. Nonetheless, he acknowledges

in his brief th at the trial court did, in fact, grant those motions. Defendant has failed to prove any prejudice. Tenn. R. App . P. 36(b). This issue is without merit.

VII. SENTENCE Finally, defendant contests the Range II, 16- year sentence imposed by the trial court. Although this i ssue is moot in light of our reversal, we note tha t defendant was improperly sentenced as a Range II multiple off ender. Forp urposes of sentence enhancement, “‘prior conviction’ means a conviction that has b een adjudicated prior to the commission of the mor e recent offense for which sentence is to be imposed.” State v. Blouvett , 904 S.W.2d 111, 113 (Tenn. 1995)(emphasis added). The current o f fense was committed November 22, 1996. One of the “prior convictio ns” used to enhance his sentenci ng range was adjudicated Decembe r 5, 1996; the second and third w ere adjudicated on December 12, 1996. Had defend ant’s con viction be en affi rmed by this C ourt, the dictates of Blouvett would require a r

emand for

re-sentencing as a Range I standard offender.

CONCLUSION Based upon the foregoing, we find the trial court erred in failing to suppress evidence seized in t he course of an imp roper sea rch. Acco rdingly, the judgment of the trial court is REVERSED, and the case DISMISSED.

____________

________________

____ _ JOE G. RILEY, JUDGE9

CONCUR:

_____________________________________ JOHN H. PEAY

, JUDGE

_____________________________________ JAMES C. BEA

SLEY, SR., SPECIAL JUDGE