# FILED
June 11, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUA RY 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9704-CR-00140 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, JUAN E. McA

DAMS, ) JUDGE ) Appellee. ) (Motion to Suppress)

FOR THE APPELLANT : JOHN KNOX WALKUP Attorney General and Repor ter ELLEN H. POLLACK Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General PAMELA

S. ANDERSON Assistant District A

ttorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649 FOR THE APPEL LEE : RICHARD M cGEE 601 Woodland Street Nashville, TN 37206

OPINION FI LED:

REVERSED AND

REMANDED
JERRY L. SMITH, JUDGE2 OPINION
The State of Tennessee appeals the ruling of the trial court granti ng the defendant’s motion to suppress cocai ne discovered during a search of his motor vehicle. The defendant was i nitially stopped for a tr affic violation. Since he does not contest the validity of that initial stop, the sole issue presented fo r appeal is whether the search of the v ehicle violated the defendant’s constitutional rights

. We find that it did not; therefore, we reve rse and remand the case to the tr ial court for further proceedings consistent with this

opinion.

SUPPRESSION HEARING
The only testimony at the suppression hearing was given by Officer Brock Parks. Officer Parks testified on direct examination that he stopped the defendant for failing to come to a complete halt at a STOP sign. A rec ords check revealed the defendant’s driver’s license to be revoked. The officer then “placed [the defendant] under arres t” and put him in the back of the patr ol car. With the defendant secured, Officer Parks conducted a se arch of the passenger compartment of the vehicle. This search yielded a brow n paper bag containing approximately thirt

y (30) grams of cocaine,which was found on the dr iver’s side floorboard.
During cross-examination, Officer Parks’ testimony was extremely confusing as to whether the officer merely intended to is sue a citation before the cocaine was discov

ered, or whether the defendant had been arrested prior to the discovery of cocaine. Nevertheless, the officer s pecifically acknowl edged that he could not allow the defendant to d rive away sin ce his license had been rev oked.
The trial court appears to have been concerned over the off icer’s apparent practice of searching every vehicle stopped for a traffic offense.3

Apparently concluding that the search was inci dent to a citation, and not an arrest, the trial cour

t orally granted the motion to suppress.
The trial court subsequentl y issued a memorandum opinion findi ng the search was conducted upon the officer’s learning “that the defendant had no driver’s license. ” The trial court did not acknowledge in his findi ngs the uncontroverted testimony that the defendant’s driver’ s license had actually been revoked.
The trial court reached the following conclusions: (1) The search of the defendant’s ve hicle could not be based on the “Carroll Doctri ne” which permits w arrantless searches based on the officer’s belief that the vehi cle contained contraband. (2) The search was not an inventory search s ince the officer stated he did not plan to impound the vehi cle. (3) The plain view doctrine could not apply since paper sacks are common in automobiles, and the cocaine itself was not in plain view. (4) This was not a custodial arrest in which a search ordinarily occurs or is needed. “More importantly, a search incident to arrest is a [sic] limited to the

person and immediate surroundings of the person arrested.” We agree with the trial court’s first three (3) conclus ions, but disagree wi th the last.

CUSTODIAL A RREST
Because the defendant does not challeng e the validity of the in itial stop, we will first c

onsider whether there w as a custodial arrest and w hether the officer had grounds to make such an arr est.
Generally, officers are to issue citations to drivers committing minor traffic infractions, rather than conti nuing to hold them in custody . Tenn. Code Ann. § 40-7-118(b)(1). However, an officer may not issue a citation to a person where4

“there is a reasonable li kelihood that the offense would continue . . .” Tenn. Code Ann. § 40-7-118(c)(2) . When Officer Parks discovered the defendant w as driving on a rev

oked license, it was i ncumbent upon the officer to prevent th e defendant from continuing to driv e his vehicle on a rev

oked license. A custodial arrest is appropriate under these circumstances.
Based upon his confusing testimony, it is at least arguab le that Officer Parks believed that he had the option of giving the de fendant a misdemeanor citation and letting him continue driving instead of arresting him. If he had such a belief, he was in error. Regardless, the officer’ s subjective belief is not controlling. State v. Evetts , 670 S.W.2d 640, 642 (Tenn. Crim. App. 1984), see also , Whren v. U.S. , 517 U.S. 806; 116 S.Ct. 1769; 135 L. Ed2 89 and State v. Vineyard and Cockburn , 958 S.W .2d 730 (T N 1998). (H olding of fice’s su bjective beliefs or motives irelevant if there is an objectively reasonable basis for arrest.) We find the def endant had been lawfully arrested prior to the search of his vehicle.
The validity of the arr

est established, we must ex amine whether the officer had a right to search the defendant’s vehicle.

SEARCH OF THE VEHICLE

Officer Parks searched the defendant’s vehicle without a w

arrant, and warrantless searches

are presumed to be unreasonable. Coolidge v. New Hampshire , 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576 (1971); State v. Watkins , 827 S.W.2d 293, 295 (Tenn. 1992). The state, therefore, was requir

ed to prove by a preponder ance of the evidence in the suppression hearing that the search and resulting s eizure were justi

fied pursuant to one of the recognized ex ceptions to the warrant requirement. Coolidge , 4035

U.S. at 454-55, 91 S.Ct. at 2032,29 L.Ed.2d at 576; State v. McClanahan , 806 S.W.2d 219, 220 (T enn. Crim. App. 1991).

When an officer makes a custodial arrest of a motor v ehicle operator, the officer has full authority to s earch the passenger compartment of the motor vehicle contemporaneously to the arrest. New York v. Bel ton , 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1990); Watkins , 827 S.W.2d at 295-96. The “contemporaneous” req uirement of the search is not dest royed when a defendant is placed in a pa trol car. United States v. White , 871 F.2d 41, 44 (6th Cir. 1989); Watkins , 827 S.W.2d at 296. When Officer Parks made a valid custodial arr

est of the defendant, he had a right to s earch the passenger compartment of the defendant’s vehicle.The cocaine discovered as a result of this search is admissibl e.
Accordingly, the judgment of the trial court is reversed, and the case is remanded for further proceedings c onsistent with this opi nion.

_________________________ JERRY L. SMITH, JU DGE

CONCUR:

_________________________ JOHN H. PEAY

, JUDGE

_________________________ DAVID H. WELL ES, JUDGE