          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE        FILED
                            JANUARY 1998 SESSION
                                                         June 11, 1998

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,                     )
                                        )    NO. 01C01-9704-CR-00140
      Appellant,                        )
                                        )    DAVIDSON COUNTY
VS.                                     )
                                        )    HON. THOMAS H. SHRIVER,
JUAN E. McADAMS,                        )    JUDGE
                                        )
      Appellee.                         )    (Motion to Suppress)



FOR THE APPELLANT:                           FOR THE APPELLEE:

JOHN KNOX WALKUP                             RICHARD McGEE
Attorney General and Reporter                601 Woodland Street
                                             Nashville, TN 37206
ELLEN H. POLLACK
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493

VICTOR S. JOHNSON, III
District Attorney General

PAMELA S. ANDERSON
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649




OPINION FILED:



REVERSED AND REMANDED



JERRY L. SMITH,
JUDGE
                                      OPINION



       The State of Tennessee appeals the ruling of the trial court granting the

defendant’s motion to suppress cocaine discovered during a search of his motor

vehicle. The defendant was initially stopped for a traffic violation. Since he does

not contest the validity of that initial stop, the sole issue presented for appeal is

whether the search of the vehicle violated the defendant’s constitutional rights.

We find that it did not; therefore, we reverse and remand the case to the trial

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 records

check revealed the defendant’s driver’s license to be revoked. The officer then

“placed [the defendant] under arrest” and put him in the back of the patrol car.

With the defendant secured, Officer Parks conducted a search of the passenger

compartment of the vehicle. This search yielded a brown paper bag containing

approximately thirty (30) grams of cocaine, which was found on the driver’s side

floorboard.



       During cross-examination, Officer Parks’ testimony was extremely

confusing as to whether the officer merely intended to issue a citation before the

cocaine was discovered, or whether the defendant had been arrested prior to the

discovery of cocaine. Nevertheless, the officer specifically acknowledged that he

could not allow the defendant to drive away since his license had been revoked.



       The trial court appears to have been concerned over the officer’s

apparent practice of searching every vehicle stopped for a traffic offense.



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Apparently concluding that the search was incident to a citation, and not an

arrest, the trial court orally granted the motion to suppress.



        The trial court subsequently issued a memorandum opinion finding 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 findings 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 vehicle could not be based on
        the “Carroll Doctrine” which permits warrantless searches based on
        the officer’s belief that the vehicle contained contraband.

        (2) The search was not an inventory search since the officer stated
        he did not plan to impound the vehicle.

        (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) conclusions, but disagree with the

last.



                               CUSTODIAL ARREST



        Because the defendant does not challenge the validity of the initial stop,

we will first consider whether there was a custodial arrest and whether the officer

had grounds to make such an arrest.



        Generally, officers are to issue citations to drivers committing minor traffic

infractions, rather than continuing to hold them in custody. Tenn. Code Ann. §

40-7-118(b)(1). However, an officer may not issue a citation to a person where



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“there is a reasonable likelihood that the offense would continue . . .” Tenn.

Code Ann. § 40-7-118(c)(2). When Officer Parks discovered the defendant was

driving on a revoked license, it was incumbent upon the officer to prevent the

defendant from continuing to drive his vehicle on a revoked license. A custodial

arrest is appropriate under these circumstances.



       Based upon his confusing testimony, it is at least arguable that Officer

Parks believed that he had the option of giving the defendant 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 (TN 1998). (Holding office’s subjective

beliefs or motives irelevant if there is an objectively reasonable basis for arrest.)

We find the defendant had been lawfully arrested prior to the search of his

vehicle.



       The validity of the arrest established, we must examine 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 warrant, 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 required to prove by a preponderance of the evidence in the

suppression hearing that the search and resulting seizure were justified pursuant

to one of the recognized exceptions to the warrant requirement. Coolidge, 403



                                          4
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 (Tenn. Crim. App. 1991).



      When an officer makes a custodial arrest of a motor vehicle operator, the

officer has full authority to search the passenger compartment of the motor

vehicle contemporaneously to the arrest. New York v. Belton, 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” requirement of the search is not destroyed

when a defendant is placed in a patrol 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 arrest of the defendant, he had a right to search the passenger

compartment of the defendant’s vehicle. The cocaine discovered as a result of

this search is admissible.



      Accordingly, the judgment of the trial court is reversed, and the case is

remanded for further proceedings consistent with this opinion.




                                                _________________________
                                                JERRY L. SMITH, JUDGE



CONCUR:




_________________________
JOHN H. PEAY, JUDGE




_________________________
DAVID H. WELLES, JUDGE




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