             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE            FILED
                             NOVEMBER 1997 SESSION
                                                            March 5, 1998

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )   C.C.A. NO. 01C01-9612-CC-00526
             Appellant,               )
                                      )    MAURY COUNTY
VS.                                   )
                                      )    HON. JAMES L. WEATHERFORD,
AVERY Q. WALKER,                      )    JUDGE
                                      )
             Appellee.                )    (State appeal - Motion to Suppress)



FOR THE APPELLANT:                        FOR THE APPELLEE:


JOHN KNOX WALKUP                          JOHN S. COLLEY
Attorney General & Reporter               710 North Main St., Suite 200
                                          P.O. Box 1476
ELIZABETH B. MARNEY                       Columbia, TN 38402
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493

MIKE BOTTOMS
District Attorney General

J. LEE BAILEY, III
Asst. District Attorney General
P.O. Box 1619
Columbia, TN 38401




OPINION FILED:____________________



REVERSED AND REMANDED


JOHN H. PEAY,
Judge
                                                  OPINION



                  The defendant was indicted in June 1995 on one count of possession with

intent to sell cocaine and one count of possession of marijuana. He filed a motion to

suppress all evidence gathered during the search of his person. After a hearing, the trial

court granted the defendant’s motion. The State now appeals.1 After a review of the

evidence and applicable law, we reverse and remand this cause to the trial court for

further proceedings.



                  The defendant’s arrest stemmed from an incident on March 29, 1994. The

defendant had driven a vehicle into the parking lot of a BP Market. Bill Gault, a

patrolman with the Columbia Police Department, was inside the market and heard the

defendant pull into the lot because the defendant had been playing his radio so loudly

that it could be heard inside the store. Officer Gault testified that he had exited the store

and had approached the defendant about the noise. The defendant, however, ignored

the officer and continued into the store. Officer Gault testified that when the defendant

returned to the car, he informed him that he was in violation of the city anti-noise

ordinance. He then asked the defendant for identification so that he could issue him a

citation. Gault testified that the defendant had said that he had no identification, thus,

he placed the defendant under arrest. He then had the defendant place his hands on the

roof of the car so that he could do a search of the defendant’s person.



                  Gault testified that as he patted down the defendant, his left hand touched


         1
           In the defe nda nt’s b rief, in addit ion to argu ing th e sea rch is sue , he c onte nds that th e Sta te’s
app eal sh ould b e dism isse d for failing to co mp ly with T .R.A .P. 5( b). H e arg ues that th e Sta te did not file
in the trial court any proof of service upon this Court of its Notice to Appeal. However, the Tennessee
Supreme Court addressed that issue shortly after the defendant filed his brief and concluded that such a
failure is not a sufficient b asis for d ismiss al of an ap peal. Cobb v. Beier, 944 S.W .2d 343 ( Tenn . 1997).



                                                           2
something in the defendant’s left front pants pocket. He further testified that when he did

this, the defendant attempted to spin around and face him. As a result of this action, the

officer handcuffed the defendant. Officer Gault testified that he had then resumed his

search and had discovered a brown plastic pill bottle wrapped in black tape in the

defendant’s front left pocket, a plastic bag of marijuana in the defendant’s right pocket,

a beeper, and a second plastic bag containing a white powder. It was later determined

that the contents of the pill bottle were crack cocaine and that the white powder was also

cocaine.



              Officer Gault testified that he had arrested the defendant because he had

no identification and because he was violating a city ordinance. He stated that the search

of the defendant was to check for weapons, although he had no reason to suspect that

the defendant was armed.



              The defendant testified that he had gone to the BP Market to get a soda.

He stated that Officer Gault had said something to him on his way into the market, but

that he had not understood what the officer said, therefore, he continued into the store.

The defendant testified that when he exited the store, Officer Gault had asked him for

identification. The defendant had explained that his mother only lived about two blocks

away and that he had left his driver’s license at her house. However, he had memorized

his driver’s license number and gave that number and his name to Officer Gault. The

defendant testified that Gault had then called in the number on his radio. He further

testified that the officer had been told the license was valid. Regardless, the defendant

was then placed under arrest. He testified that Officer Gault had touched his front left

pocket and had then called on his radio for a member of the vice squad to assist him.

He further testified that he did not attempt to spin around when the officer touched that



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pocket. He stated that Officer Gault continued the search by reaching inside his pants

pockets and removing the contents.



                 Phyllis Morrow, who was the dispatcher for the Columbia Police Department

at the time of this incident, confirmed the defendant’s testimony that the officer had called

in a driver’s license number. She testified that Officer Gault had radioed her at 5:15 p.m.

on March 29, 1994, and had asked her to run a check on a car tag number. He then

radioed her again at 5:17 p.m. and asked her to run a check on a driver’s license number.

Shortly thereafter, he radioed again and asked for backup. She testified that she could

not recall, nor had she documented, the results of the numbers check.



                 Following the hearing on the motion to suppress, the trial judge entered an

order stating that the “motion is well-taken and should be granted.” Thus, all evidence

seized from the defendant was ordered suppressed. The trial court made no specific

findings of fact. The State now appeals and argues that the search was proper as a

search incident to lawful arrest. The defendant argues that the arrest was improper and,

therefore, the search was improper as well.



                 First, we must determine whether the defendant was properly arrested.

Officer Gault approached the defendant and asked for his driver’s license so that he

could write the defendant a citation for violating the City of Columbia’s anti-noise

ordinance.2 When the defendant was unable to produce his license, Officer Gault

arrested him pursuant to T.C.A. § 7-3-505 (Supp. 1997). This statute, in pertinent part,

provides that when a police officer asks a person who has violated a city ordinance to


        2
         The ordinance basically prohibited “loud sound amplification systems in vehicles.” The
ordinance provided that no person operating or occupying a motor vehicle shall operate any sound
amplification system from within the vehicle so that the sound is plainly audible at a distance of fifty or
more feet from the vehicle.

                                                      4
produce identification for the purpose of issuing a citation and the violator is unable to do

so, the officer may make an arrest.



               In this case, when the defendant was asked for his identification, he told the

officer that he had left his driver’s license at his mother’s house but that he had

memorized the number on his license. He gave the number to the officer who then had

his dispatcher check the number. At the suppression hearing, no one but the defendant

testified as to the result of that number check. The defendant, however, argues that his

recitation of his driver’s license number was sufficient identification. The defendant

points to T.C.A. § 40-7-118 which provides for when a citation should be issued in lieu

of continued custody of an arrested person. He argues that pursuant to this statute, he

should have been issued a citation rather than be arrested. In State v. John Earl

Thompson, No. 01C01-9308-CC-00259, Dickson County (Tenn. Crim. App. filed May 12,

1994, at Nashville), a panel of this court discussed the above statute and concluded that

the statute addresses three situations: “one in which a citation is required in lieu of

continued custody; one in which a citation is discretionary; and one in which a citation is

disallowed.”



               In general, a citation is required in lieu of continued custody for

misdemeanors committed in an officer’s presence. T.C.A. § 40-7-118(b)(1). However,

for specifically enumerated misdemeanors, such as driving while under the influence of

an intoxicant, this general provision does not apply. Discretionary citations may be used

for persons accused of certain degrees of theft, bad check violations, revoked or

suspended driver’s license violations, certain assault and battery offenses, and

prostitution. T.C.A. § 40-7-118(b)(3).




                                             5
              The statute further provides for eight circumstances in which a citation is

“disallowed.” The only circumstance which relates to this case is: “[t]he person arrested

cannot or will not offer satisfactory evidence of identification . . . .” T.C.A.

§ 40-7-118(c)(3). The defendant argues that by providing the officer with his driver’s

license number, he had offered satisfactory evidence of identification, and thus should

not have been arrested. We do not agree. Offering a driver’s license number is certainly

not the same as actually producing the driver’s license itself. Without any photo

identification, the officer had no way to confirm that the number the defendant had recited

actually belonged to him. Even if the dispatcher had confirmed the license as being valid,

the officer still had no way of knowing that the defendant was who he said he was. Thus,

we conclude that the defendant did not produce satisfactory evidence of identification.

Therefore, this instance was one in which a citation was “disallowed,” making the

defendant’s arrest appropriate.



              Finding the arrest appropriate, we now turn to the validity of the warrantless

search of the defendant’s person. The Fourth Amendment clearly provides that a person

is free from unreasonable search and seizure by the government. This freedom generally

encompasses the right to be free from searches conducted without a warrant. However,

the warrant requirement has been suspended in a number of exigencies and a search

incident to arrest is one of these. This type of search is valid because of the need to

check for weapons and the need to prevent concealment or destruction of evidence. See

New York v. Belton, 453 U.S. 454, 457 (1981). This type of search extends to the

arrestee’s person and the area within his immediate control. Chimel v. California, 395

U.S. 752 (1969). Furthermore, the Supreme Court has held that “in the case of a lawful

custodial arrest a full search of the person is not only an exception to the warrant

requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that



                                              6
Amendment.” United States v. Robinson, 414 U.S. 218, 235 (1973) (emphasis added).



              Here, the officer performed a search of the defendant’s person only.

Pursuant to the search, the officer discovered a prescription pill bottle covered in black

tape, a plastic bag containing marijuana, and a plastic bag containing cocaine. We find

no reason to conclude that anything about this discovery was improper. The search was

performed incident to a valid arrest, thus, the findings of the search are valid as well. The

Supreme Court has stated, “[I]t is entirely reasonable for the arresting officer to search

for and seize any evidence on the arrestee’s person in order to prevent its concealment

or destruction.” Chimel, 395 U.S. at 763 (emphasis added). See Gustafson v. Florida,

414 U.S. 260 (1973)(upholding a full search of defendant’s person incident to lawful

arrest for driving without a valid driver’s license). See also Carroll v. United States, 267

U.S. 132 (1925).



              In concluding that the arrest and search of the defendant were valid, we

reverse the judgment of the trial court and remand this cause to that court for further

proceedings consistent with this opinion.



                                                  ____________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID H. WELLES, Judge


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