                     IN THE SUPREME COURT OF TENNESSEE
                                 AT NASHVILLE
                               (Heard at Clarksville)FILED
                                                       April 12, 1999

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE                 )        FOR PUBLICATION
                                                 Appellate Court Clerk
                                   )
             Appellant             )        FILED: April 12, 1999
                                   )
v.                                 )        SUMNER CRIMINAL
                                   )
BOBBY CRUTCHER                     )        Hon. Jane Wheatcraft, Judge
                                   )
             Appellee.             )        NO. 01S01-9804-CR-00081
                                   )
                                   )        (Search and Seizure)
                                   )



For the Appellant:                          For the Appellee:

John Knox Walkup                            Bryce C. Ruth, Jr.
Attorney General & Reporter                 White House, Tennessee

Michael E. Moore
Solicitor General

Karen M. Yacuzzo
Assistant Attorney General




                                OPINION



AFFIRMED                                                        BARKER, J.
                                              OPINION



        This is an appeal by the State of Tennessee from the judgment of the

intermediate appellate court affirming the suppression of evidence in the trial court

below. 1 The sole issue is whether the warrantless police search of the appellee’s

motorcycle violated his rights guaranteed by the Fourth Amendment of the United

States Constitution and Article I, section 7 of the Tennessee Constitution.



        The State contends that the suppression of evidence was improper because

the search in question was incident to a lawful arrest. For the reasons that follow, we

conclude that the appellee, Bobby Crutcher, was not under arrest at the time of the

police search. Accordingly, we affirm both the trial court and the Court of Criminal

Appeal’s determination that the search was not incident to a lawful arrest. The

evidence obtained from the search was properly suppressed.



                                        BACKGROUND



        On October 19, 1995, Officer Frank Moniz of the Gallatin Police Department

observed three motorcyclists drive away from a traffic light at an excessive rate of

speed. The officer activated his emergency flashing equipment and pulled over two of

the speeding motorcyclists. However, the third motorcycle, driven by the appellee,

accelerated even more in an attempt to flee from the pursuing officer. Officer Moniz

gave chase to the appellee and the two vehicles reached speeds of one hundred

(100) miles per hour. The officer radioed for assistance and eventually slowed his

vehicle down upon entering a residential area.




        1
          Oral argument was heard in this case on October 15, 1998 in Clarksville, Tennessee, as part of
this Cou rt’s S.C.A.L .E.S. (Supreme Court Advancing Lega l Education for Students ) project.

                                                   2
        As Officer Moniz crested a hill in his patrol car, he observed the appellee drive

up an embankment and wreck into a storm drain. The appellee had been thrown

approximately twenty feet away from his motorcycle and was crawling out of the

roadside brush when the officer drove up to apprehend him. Officer Moniz testified

that upon reaching the appellee, he placed one arm behind the appellee’s back and

intended to arrest him for reckless endangerment and evading arrest.2 However,

when the appellee complained of injuries, Officer Moniz ceased handcuffing him and

called for an ambulance.



        Officer Moniz testified that he made no additional effort to arrest the appellee at

the accident scene. While waiting for the ambulance, Officer Moniz and other police

officers stayed with the appellee and made him lie still for his safety. The appellee

questioned Officer Rich Evans about what was going to happen to him. Officer Evans

told the appellee that he would be taken to a nearby hospital for medical treatment.

The officers did not discuss criminal charges or arrest proceedings with the appellee

and they did not give him a Miranda warning at the scene.



        Officer Moniz testified that an ambulance arrived only minutes after he radioed

for medical assistance. As the appellee was being loaded into the ambulance, his

friend, Jeff Crook, asked if he could take control of the wrecked motorcycle. The

appellee agreed and requested that Mr. Crook also take possession of the gold chains

that the appellee had around his neck.



        Officer Evans testified that he and the other officers agreed to let Mr. Crook

remove the motorcycle from the scene. However, before releasing the bike, Officer



        2
          There was so me e vidence that Offic er Mon iz also plann ed to cha rge the a ppellee w ith D.U.I.
Apparently while at the hospital, the appellee submitted to a blood-alcohol test. The results showed that
his blood /alcohol leve l was less than 0.10 percen t.

                                                     3
Evans inventoried the contents of a backpack and jacket that were located on it.3 The

officer found a loaded .38 caliber handgun located inside the backpack and found a

pill bottle inside the upper left pocket of the jacket.4 An examination of the pill bottle

revealed several small packets of a white powder, which later tested positive for

cocaine.



        The appellant was taken directly to Sumner Regional Medical Center from the

scene of the accident. He spent several hours there receiving medical x-rays and

treatment. The record reflects that during that time, Officer Evans obtained an arrest

warrant for the appellee based upon the evidence of the cocaine and firearm

possession. The appellee was released from the medical center that same evening

and was taken to the Drug Task Force Center in Sumner County. The record is silent

as to what transpired at the Drug Task Force Center. However, the evidence shows

that on the following day, the appellee was transported back to Sumner Regional

Medical Center after hospital officials notified police that the appellee had a broken

neck.



        The appellee stayed at Sumner Regional Medical Center for approximately four

days. The record reflects that Officer Moniz obtained an arrest warrant for the

appellee on October 24, 1995, based upon the charges of evading arrest and reckless

endangerment. Officer Moniz testified that the appellee was arrested after his release

from the medical center, and was charged with: (1) possession of a controlled

substance, to wit: cocaine over 0.5 grams, with intent to sell; (2) possession of a




        3
          Officer Evans testified that he searched the contents of the motorcycle based upon a policy of
the Ga llatin Police De partm ent which required an invento ry search before re leasing p ersona l property to
third parties. The motorcycle was approximately twenty feet from the roadside when the search was
conducted. The record is unclear whether the appellee was still at the scene at that time.

        4
            The Gallatin police impounded appellee’s motorcycle upon finding the cocaine substance.

                                                      4
handgun during the commission of a felony; (3) reckless endangerment; and (4)

evading arrest.



      The appellee filed a motion to suppress the cocaine substance and the

handgun on the ground that they were obtained through an improper search and

seizure. Following an evidentiary hearing, the trial court granted the motion to

suppress finding that the search was without probable cause and did not fall within an

exception to the warrant requirement. The trial court determined that there were no

grounds for an inventory search since a third party, Jeff Crook, was available to

remove the motorcycle from the scene. In addition, the court found that the search

was not incident to a lawful arrest because the appellee was not under arrest when

the search was conducted.



      On interlocutory appeal, the intermediate appellate court affirmed the

suppression order. The State of Tennessee appeals to this Court contending that the

search was proper as incident to a lawful arrest. The State concedes that the police

officers were not entitled to conduct an inventory search. See Drinkard v. State, 584

S.W.2d 650, 653-54 (Tenn. 1979). Our inquiry, therefore, is whether the appellee was

under arrest when the police officers conducted the search.



                               STANDARD OF REVIEW



      This case involves a review of the trial court’s findings of fact and law in

granting the motion to suppress. In State v. Odom, 928 S.W.2d 18, 22-23 (Tenn.

1996), this Court clarified the standard to be used by appellate courts when reviewing

those findings:




                                            5
                Questions of credibility of the witnesses, the weight and value of
        the evidence, and resolution of conflicts in the evidence are matters
        entrusted to the trial judge as the trier of fact. The party prevailing in the
        trial court is entitled to the strongest legitimate view of the evidence
        adduced at the suppression hearing, including all reasonable and
        legitimate inferences that may be drawn from that evidence. So long as
        the greater weight of the evidence supports the trial court’s findings,
        those findings shall be upheld. In other words, a trial court’s findings of
        fact in a suppression hearing will be upheld unless the evidence
        preponderates otherwise.



Id. at 23. The application of the law to the facts found by the trial court, however, is a

question of law which this Court reviews de novo. State v. Yeargan, 958 S.W.2d 626,

629 (Tenn. 1997); Odom, 928 S.W.2d at 23. W e apply these standards to address

the issue in this case. Contrary to the position taken by the dissent, we consider the

issue of whether an arrest was made for Fourth Amendment purposes to be one

primarily of fact. See Childs v. State, 584 S.W.2d 783, 786-87 (Tenn. 1979)

(reviewing whether an accused was in custody for purposes of giving the Miranda

warnings as primarily a question of fact).



                                             DISCUSSION



        The fundamental principle of search and seizure jurisprudence is that the police

may not conduct a search unless they first show probable cause and obtain a warrant

from a neutral magistrate.5 Under both the federal and state constitutions, “a

warrantless search or seizure is presumed unreasonable, and evidence discovered as

a result thereof is subject to suppression, unless the State demonstrates that the

search or seizure was conducted pursuant to one of the narrowly defined exceptions

to the warrant requirement.” State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997).



        5
          The righ t to be free from unreas onable s earche s and s eizures is p rovided in th e Fourth
Amendment to the United States Constitution and Article I, section 7 of the Tennessee Constitution. The
Fourth A men dme nt is applica ble to the sta tes throu gh the F ourteen th Am endm ent. Map p v. O hio, 367
U.S. 64 3, 655, 81 S.Ct. 168 4, 1691, 6 L.Ed.2d 1081 (1 961).

                                                     6
        One exception to the warrant requirement is a contemporaneous police search

that follows a lawful arrest. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034,

2040, 23 L.Ed.2d 685 (1969); State v. Watkins, 827 S.W.2d 293, 295 (Tenn. 1992).

When police officers make a lawful custodial arrest, they are permitted, as incident to

the arrest, to search the person arrested and the immediately surrounding area.

Chimel, 395 U.S. at 763, 89 S.Ct. at 2040. The rationale for those searches is the

need to disarm the arrestee in order to safely take him into custody, and the need to

preserve evidence for later use at trial. United States v. Robinson, 414 U.S. 218, 234,

94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973).



        In cases where the arrestee is an occupant of a vehicle, police officers may

conduct searches, contemporaneous to the arrest, of the passenger compartments

inside the vehicle. New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69

L.Ed.2d 768 (1981). Following Belton, this Court has joined several jurisdictions6 in

upholding the validity of those searches even where the arrestee is neutralized in the

back seat of a police car when the search is conducted. Watkins, 827 S.W.2d at 295-

96.



        The State contends that the appellee was under arrest at the accident scene

and that the search was proper under Belton and Watkins. We need not address

whether the search fell within the scope of Belton and Watkins because we affirm the

trial court’s conclusion that the appellee was not under arrest when the search was

conducted.



        6
          See Unite d Sta tes v. Sho lola, 124 F.3 d 803, 81 7 (7th Cir. 1 997); United States v. Franco, 981
F.2d 47 0, 472 (1 0th Cir. 19 92); United S tates v. W hite, 871 F.2 d 41, 44 (6 th Cir. 198 9), affirmed after
remand 892 F.2 d 1044 (6th Cir. 19 89); Unite d Sta tes v. Karlin , 852 F.2d 968, 971-72 (7th Cir. 1988);
State v. Pittman, 556 N.W .2d 276, 2 82-83 (N eb. Ct. Ap p. 1996) ; State v. Haught, 831 P.2d 946, 948
(Idaho C t. App. 199 2); State v. Ga rcia , 801 S.W .2d 137, 1 41-42 (T ex. App . 1990). But see United
States v. Vasey, 834 F.2 d 782, 78 7 (9th Cir. 1 987); State v. Gr een wald , 858 P.2d 36, 37 (N ev. 1993 ).

                                                       7
        “The standards for reviewing police conduct become more stringent as the

degree of invasion of the citizen's privacy increases.” State v. Hawkins, 969 S.W.2d

936, 938 (Tenn. Crim. App. 1997). There are three tiers of law enforcement action

involving “seizures” of the person under the Fourth Amendment. These situations

include a wide range of invasive actions, ranging from the “stop and frisk” under

reasonable suspicion, to the “custodial arrest” based on probable cause, to

incarceration of an offender following a custodial arrest.



       Not all lawful seizures justify the same degree of search. For instance, a police

officer who has no reasonable suspicion that criminal activity has taken place may still

make a casual, investigatory stop; but the officer’s law enforcement authority under

such circumstances is limited to informal questioning of the persons involved. Florida

v. Bostick, 501 U.S. 429, 433, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991); State v.

Butler, 795 S.W.2d 680, 685 (Tenn. Crim. App. 1990). Where, on the other hand, the

officer has a reasonable, articulable suspicion that a person has engaged in, or is

preparing to engage in, criminal behavior, the level of permissible law enforcement

authority is raised to the stop and frisk of the person under the principles of Terry v.

Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In such cases, a limited pat-

down search of the person and a limited search of the passenger compartment of the

vehicle in which the person was riding are permissible upon a showing that such

action is justified to protect the officer. Id., 392 U.S. at 27, 88 S.Ct. at 1883; State v.

Simpson, 968 S.W.2d 776, 780 (Tenn. 1998).



       By comparison, the next level of law enforcement authority, the custodial arrest,

is justified upon a showing of probable cause to believe that a crime has been

committed, and that the suspect of the investigation committed that crime. As

discussed above, a lawful custodial arrest carries with it the power to perform a search

“incident to arrest,” which is a contemporaneous search of both the person arrested,

                                              8
and the area into which the arrestee might reach for a weapon or destroy evidence,

including the passenger area of any vehicle in which the arrestee was riding. Chimel,

395 U.S. at 763, 89 S.Ct. at 2040; Belton, 453 U.S. at 457, 101 S.Ct. at 2862.



         The most invasive law enforcement seizure is incarceration. Law enforcement

authority in such cases extends to performing a detailed “inventory search” of all

personal effects in the arrestee’s possession, and possibly of the vehicle in which he

was riding at the time of arrest, if that vehicle is also seized. Illinois v. Lafayette, 462

U.S. 640, 648, 103 S.Ct. 2605, 2611, 77 L.Ed.2d 65 (1983); South Dakota v.

Opperman, 428 U.S. 364, 372, 96 S.Ct. 3092, 3099, 49 L.E.2d 1000 (1976). 7



         The bottom line is this: when the police conduct a full search under Chimel, the

seizure of the suspect must rise to the level of a custodial arrest.8 The only possible

exception to this rule might be a limited search in cases where there is probable cause

to believe that a crime has been committed, probable cause to believe that evidence

of the crime in question will be found, and the necessity for an immediate, warrantless

search to prevent the destruction or loss of evidence.9 In this case, however, the

search of the appellee’s motorcycle was wholly unrelated to the crime for which police




         7
          An in vento ry sea rch o f a ve hicle w ill be up held, how ever , only w hen there is no r eas ona ble
alternative to seizure of the vehicle . Drinka rd v. State , 584 S.W .2d 650, 6 53 (197 9).

         8
           The dissent seems to infer that because Officer Moniz had probable cause to arrest the
appellee for evading arrest and reckless driving, the appellee was necessarily “arrestable;” and
therefore, whether or not an arrest had actually been effectuated, a search incident to arrest was
justified. We decline to hold that a search may be upheld as a search incident to arrest merely because
a lawful cu stodial arre st “could h ave” be en m ade. State v. Moore, 949 S.W .2d 7 04, 7 06 (T enn . Crim .
App. 19 97), no app. filed, which ap pears to hold to the c ontrary, is he reby overr uled. Accord , Layland v.
State , 535 P.2d 1043 (A laska 1 975), overruled on other grounds; State v. Gr een wald , 109 Nev. 808, 858
P.2d 36 (1993); People v. Evans, 43 N.Y.2 d 160, 37 1 N.E.2 d 528, 40 0 N.Y.S.2 d 810 (N .Y. 1977).

         9
          See e.g., Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973)(warrantless
search of evidence beneath suspect’s fingernails reasonable in strangulation murder case even in the
absen ce of a c ontem porane ous arre st, beca use of “e vanes cent na ture” of su ch evide nce); United States
v. Chapel, 55 F .3d 1 416 , 141 9 (9th Cir. 1 995 )(wa rran tless seizu re of DU I sus pec t’s blo od re aso nab le
even without contemporaneous arrest because the accuracy of blood-alcohol evidence diminishes
quickly ove r time); United States v. Berry, 866 F.2d 887, 891 (6th Cir. 1989)(same factual scenario and
rationale as in Chapel). For an excellent discussion of the narrow Cupp exception see 3 Wayne R.
LaFav e, Search and Se izure § 5.4(b) at 155-163 (1996 ed.).

                                                          9
had probable cause to arrest. In order to justify a full Chimel search incident to arrest,

the critical question remains whether the appellee was, in fact, arrested at the scene.



         In Tennessee, an arrest is more specifically defined as “the taking, seizing, or

detaining of the person of another, either by touching or putting hands on him, or by

any act which indicates an intention to take him into custody and subjects the person

arrested to the actual control and will of the person making the arrest.” West v. State,

221 Tenn. 178, 184, 425 S.W.2d 602, 605 (1968) (citations omitted); Robertson v.

State, 184 Tenn. 277, 284, 198 S.W .2d 633, 635-36 (1947) (citations omitted); State

v. Williams, 914 940, 947 (Tenn. Crim. App. 1995). 10 An arrest may be affected

without formal words or a station house booking. 5 Am. Jur. 2d Arrest § 2 (1995).

However, there must be actual restraint on the arrestee’s freedom of movement under

legal authority of the arresting officer. Id.



         Relying on that definition, we acknowledge that the facts in this case are close

as to whether the appellee was under arrest at the accident scene. The trial court

found that Officer Moniz apprehended the appellee and intended to place him under

arrest following the wreck. The officer testified, however, that he did not arrest the

appellee due to the appellee’s injuries. Although Officer Moniz had probable cause to

make an arrest at the scene, neither he nor Officer Evans discussed criminal charges

or arrest procedures with the appellee. The appellee questioned the officers and was

told only that he would be taken to a nearby hospital for medical treatment. The




         10
            The dissent opines that the definition of “arrest” adopted in Robertson and reaffirmed in West
is no longer accurate. Cited are a series of United States Supreme Court cases and Tennessee cases
that the dissent claims establish a new definition of arrest, to wit: “an arrest occurs if, in view of all the
circumstances surrounding the incident, a reasonable person would have understood that he or she was
not free to leave.” This definition, however, fails to recognize the distinction between “seizure” and
“arrest,” discussed above. A person may be seized without being placed under custodial arrest. None
of the cas es c ited b y the d isse nt de al with this p recis e issu e. W hile we agre e tha t the “r eas ona ble
person” standard is a factor in determining whether an arrest has occurred, just as it would be for any
seizure, w e believe m ore is req uired to es tablish a cu stodial arre st for purp oses o f a searc h inciden t to
an arres t.

                                                        10
officers did not take the appellee into custody until several hours later when he was

first released from the medical center.



        Giving deference to the trial court’s findings of fact, we agree with the trial

court’s ultimate conclusion that the appellee was not under arrest at the time of the

search. The evidence reflects that the appellee was kept at the accident scene for

only a few minutes while waiting on the arrival of an ambulance. Without more, there

is no showing that the appellee was being detained by police for any reason other

than medical treatment.



        If law enforcement officers intend to justify a search as incident to an arrest, it is

incumbent upon them to take some action that would indicate to a reasonable person

that he or she is under arrest.11 Although formal words of arrest are not required, see

5 Am. Jur. 2d Arrest § 2 (1995), some words or actions should be used that make it

clear to the arrestee that he or she is under the control and legal authority of the

arresting officer, and not free to leave. In this case, actions that would have

accomplished this included, but were not limited to, accompanying the appellee to the

hospital until the arrest warrant could be obtained and served, telling the appellee that

he should consider himself in custody pending actual service of the arrest warrant, or

any other words or actions that would have conveyed the same message.



                                              CONCLUSION



        It is axiomatic that a warrantless police search may not precede an arrest and

serve as part of its justification. Smith v. Ohio, 494 U.S. 541, 543, 110 S.Ct. 1288,


        11
           The State originally tried to justify the search of the motorcycle and its contents as an inventory
search. It was only after it became apparent that this argument would fail under the principles of
Drinka rd v. State , 584 S.W.2d at 653-54, (because of the offer by appellee’s friend Jeff Crook to take
control of the motorcycle) that the State tried to justify this search as “incident to arrest.” It is clear that
Officer Moniz did not believe he had arrested the appellee.

                                                      11
1290, 108 L.Ed.2d 464 (1990) (per curiam); Sibron v. New York, 392 U.S. 40, 63, 88

S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968). Moreover, we are not prepared to hold that

the police may conduct a warrantless search merely because they have probable

cause to arrest the suspect. Having determined that the appellee was not under

arrest at the time of the search, we conclude that the search was not incident to a

lawful arrest.12



        The judgment of the Court of Criminal Appeals is affirmed with costs taxed to

the State of Tennessee.



                                                           _______________________________
                                                           WILLIAM M. BARKER, JUSTICE



CONCUR:

Anderson, C.J.,
Birch, J.


DISSENT:

Drowota, Holder, JJ.




        12
          The “search incident to arrest” exception from Chimel is based upon the need to protect police
officers and to preserve evidence at the time of arrest. The dissent relies on the Supreme Court’s later
decision in Rawlings v. Kentucky, 448 U.S . 98, 111, 1 00 S.C t. 2556, 25 64, 65 L.E d.2d 633 (1980), to
argue that a search m ay be upheld under Chimel where it occurs before the arrest. We do not read
Rawlings to broaden the scope of searches incident to lawful arrests. In Rawlings, the police arrested
the suspect imm ediately after, and contemporaneous to, the searc h of his person. The Sup reme Co urt
upheld the search as incident to arrest based upon the circumstances in that case. 448 U.S. at 111, 100
S.Ct. at 2564. In appellee’s case, the police did not take custody of the appellee until several hours after
the search, when the appellee was first released from the medical center. Moreover, the formal arrest
was not made until approximately four days later. The search exceeded the scope and rationale of
Chimel.

                                                    12
