             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE             FILED
                              OCTOBER 1997 SESSION
                                                             March 10, 1998

                                                          Cecil W. Crowson
                                                         Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )
                    APPELLANT,       )
                                     )           No. 01-C-01-9611-CR-00487
                                     )
                                     )           Davidson County
v.                                   )
                                     )           Thomas H. Shriver, Judge
                                     )
                                     )           (Interlocutory Appeal)
TRACY PITTS,                         )
                                     )
                   APPELLEE.         )



FOR THE APPELLANT:                        FOR THE APPELLEE:

John Knox Walkup                          C. Edward Fowlkes
Attorney General & Reporter               Attorney at Law
425 Fifth Avenue, North                   172 Second Avenue, North, Suite 214
Nashville, TN 27243-0493                  Nashville, TN 37201-1908

Lisa A. Naylor
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493

Victor S. Johnson, III
District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649

John C. Zimmerman
District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649




OPINION FILED:_______________________________


REVERSED AND REMANDED FOR A NEW SUPPRESSION HEARING


Joe B. Jones, Presiding Judge
                                     OPINION


       This court granted the State of Tennessee’s (state) application for permission to

appeal to determine the propriety of the trial court’s suppression of cocaine discovered

during the search of a motor vehicle which was stopped for a traffic violation. The state

contends the stop and subsequent search pass constitutional muster because (a) the

officers had probable cause to believe Tracy Pitts (defendant) committed a traffic violation

and (b) the search of the vehicle was incident to an arrest. After a thorough review of the

record, the briefs submitted by the parties, and the law governing the issue presented for

review, it is the opinion of this court that the trial court failed to make appropriate findings

of fact relative to the stop of the vehicle. Thus, the judgment of the trial court is reversed,

and this case is remanded for a new suppression hearing.



                                               I.

                               PROCEDURAL HISTORY



       On September 18, 1995, the Davidson County Grand Jury returned a two-count

indictment charging the defendant with operating a motor vehicle without having his driver’s

license in his immediate possession, and possessing .5 grams or more of cocaine with the

intent to sell or deliver the substance. The defendant subsequently filed a motion to

suppress the cocaine seized from his motor vehicle.           The trial court conducted an

evidentiary hearing on the merits of the motion on December 21, 1995. The court took the

motion under advisement.

       On July 16, 1996, the trial court filed a “Memorandum Opinion and Order” granting

the defendant’s motion and suppressing the use of the seized cocaine as evidence. In

ruling, the trial court relied upon language from State v. James E. Sanders, No. 01-C-01-

9502-CC-00037, Marshall County (Tenn. Crim. App., Nashville, January 17, 1996), stating:


              “Under these facts, it is clear that the conduct of the officers
              was not reasonably related in scope to the circumstances




                                               2
              which justified the stop in the first place, i.e., the alleged tag
              violation. Despite having stopped the defendant for a traffic
              offense, the officers immediately exceeded the purpose of the
              stop by investigating the matter of drugs without a reasonable
              suspicion of such behavior. Accordingly, we view the conduct
              as improperly intrusive and unreasonable under the fourth
              amendment to the United States Constitution and article I,
              section 7 of the Tennessee Constitution.”


Based on Sanders, the trial court concluded:

              Applying the analysis to the case at bar, this court concludes
              that it is not necessary to determine whether the initial stop
              was justified legally or factually. Under the circumstances here
              there was no justification to search incident to the arrest, there
              was no probable cause to search. The drugs were not in plain
              view . . . the search was illegal and the evidence must be
              suppressed.


       The state moved for and was granted an interlocutory appeal pursuant to Rule 9,

Tennessee Rules of Appellate Procedure. Subsequently, this court granted the state’s

application to review the issue on its merits. Tenn. R. App. P. 9(a) and (b).



                                                 II.

                           THE SUPPRESSION HEARING



       Officers James Stackhouse, William E. Dillon, and Thomas W. Rollins, Metropolitan

police officers, were assigned to detect drug trafficking in the Dickerson Road area.

Officers Stackhouse and Dillon were together in an unmarked police car. Officer Rollins

was alone in a marked police car.

       The officers discussed the defendant and other suspected drug dealers shortly after

roll call at the East Sector Precinct. The defendant was a known seller of illicit narcotics

in the Dickerson Road area. Officer Stackhouse described the defendant as a “well-

known” trafficker in illicit narcotics. He had “received a lot of information” about the

defendant’s drug-related activities. Most of the information came from other police officers.

However, Officer Stackhouse had spoken with two prostitutes who had purchased illicit

narcotics from the defendant. The officer was also familiar with the defendant’s prior

convictions for illicit narcotic transactions.

       Officers Stackhouse and Dillon obtained the defendant’s pager number. They

                                                 3
called the number to arrange the purchase of cocaine. However, the officers could not

reach the defendant. They concluded they had the wrong number.

       The defendant’s vehicle was seen at Jeff’s Tire Barn between 5:30 p.m. and 6:00

p.m. Officers Stackhouse and Dillon parked their vehicle in a parking lot where they could

observe the defendant’s vehicle. Shortly thereafter, the defendant left the business, drove

north on Dickerson Road, went to the next street, and made a left turn. The turn was made

immediately in front of the two officers. The officers testified the defendant failed to signal

before making the left turn. The defendant denied failing to signal.

       The defendant drove a short distance and entered the parking lot of Mufflers,

Brakes and More, Inc. Officers Stackhouse and Dillon turned their vehicle around and

entered the parking lot. They advised the defendant he was being stopped because he

committed a traffic violation, namely, failing to signal before making a left turn. Officer

Stackhouse asked the defendant for his driver’s license. The defendant advised the officer

he did not have his license with him. The defendant was removed from his vehicle,

advised he was under arrest, and placed inside Officer Rollins’s marked police car.

       Officers Stackhouse and Dillon searched the defendant’s motor vehicle a few

minutes after the defendant was arrested and secured in the police car. While officer

Dillon was searching the driver’s side of the vehicle, he found a small bag containing

several rocks of cocaine between the right side of the driver’s seat and the console

between the two front bucket seats.

       The defendant denied he was the owner of the cocaine, and he denied knowing the

cocaine was in his vehicle. Later, the defendant told the officers he was on probation in

the “big court” and he would have to serve his sentence due to his arrest, which violated

his probation. The defendant asked the officers to arrange a “deal” so he would not have

to serve the sentence in the prior case; he agreed to help arrange sales of illicit narcotics

with other traffickers. The defendant stated there were “bigger fish out there” than him.

       The defendant contacted a drug trafficker and made arrangements to purchase an

“eight ball” of cocaine. The drug trafficker told the defendant to meet him at an agreed

location in another part of Nashville. However, the officers did not want to leave their

sector to purchase the cocaine. The trafficker refused to come into the officers’ sector.



                                              4
Another police car was dispatched to the location where the sale was to occur, but the

trafficker’s vehicle could not be located.



                                             III.

                      STANDARD OF APPELLATE REVIEW



       When an accused is afforded an evidentiary hearing on the merits of a motion to

suppress, the findings of fact made by the trial court are binding upon the appellate court

unless the evidence contained in the record preponderates against these findings. State

v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Moore, 775 S.W.2d 372, 374 (Tenn.

Crim. App.), per. app. denied (Tenn. 1989). This standard of review developed because

the trial court, as the trier of fact, must assess the credibility of the witnesses, determine

the weight and value to be afforded the evidence adduced during the hearing, and resolve

any conflicts in the evidence. However, an appellate court is not bound by the trial court’s

conclusions of law.

       This same standard of review is applicable to suppression issues which are raised

in a discretionary appeal pursuant to either Rule 9 or Rule 10, Tennessee Rules of

Appellate Procedure. Moore, 775 S.W.2d at 374. As this court said in Moore:


              Issues raised by an interlocutory or extraordinary appeal, after
              permission to appeal has been granted, are decided in the
              same manner as if the issues had been raised in an appeal as
              of right. Since the thrust of the State of Tennessee’s
              interlocutory appeal challenges the ruling of the trial court in
              granting the defendant’s motion to suppress evidence, the time
              tested rules applicable to the findings of the trial court apply.


775 S.W.2d at 374.

       In this case, the trial court did not make complete findings of fact. As previously

stated, the court stated it was “not necessary to determine whether the initial stop was

justified legally or factually.” When this occurs, the standard of review is de novo on the

record. See State v. Dougherty, 930 S.W.2d 85, 86 (Tenn. Crim. App. 1996).




                                              5
                                              IV.

               THE TRAFFIC STOP AND CUSTODIAL ARREST



       The state argues the traffic violation, the defendant’s failure to signal he was making

a left turn, occurred in the presence of the officers, permitting the officers to stop the

defendant’s vehicle.     The defendant denied the failure to signal his turn.            A law

enforcement officer has the right to stop a vehicle when the person driving the vehicle has

committed a traffic offense in the sight and presence of an officer. Tenn. Code Ann. § 40-

7-103(a)(1). Hardaway v. State, 202 Tenn. 94, 302 S.W.2d 351 (1957) (speeding); State

v. Bryant, 678 S.W.2d 480 (Tenn. Crim. App. 1984), cert. denied, 469 U.S. 1192, 105 S.Ct.

967, 83 L.E.2d 971 (1985) (speeding). As a general rule, the officers would be limited to

issuing a citation to the driver of the vehicle, rather than arresting the driver.1 Tenn. Code

Ann. § 40-7-118(b)(1). When the defendant advised the officers he did not have his

driver’s license in his immediate possession, however, the officers had the right to

physically arrest the defendant. Tennessee Code Annotated § 55-50-351 states:


              (a) Every licensee shall have such licensee’s operator’s or
              chauffeur’s license in immediate possession at all times when
              operating a motor vehicle and shall display the same, upon
              demand . . . provided, that it is unlawful for any law
              enforcement officer of this state, except a state patrol officer or
              officer of the department, to demand the exhibition of such
              licenses, unless the operator of the motor vehicle is then
              engaged in, or immediately prior to such demand has been
              engaged in, a violation of any municipal ordinance or statute
              law of this state . . . [a law enforcement officer may] effect the
              arrest of any person so found to be in violation of this section.


       If the officers had not arrested the defendant, he would have continued driving his

vehicle without his license in his immediate possession. An officer may not simply issue

a citation to a person where “there is reasonable likelihood that the offense would

continue.” Tenn. Code Ann. § 40-7-118(c)(2).

       The officers had the right to stop the defendant if he committed an offense in their

presence. If he committed the offense and then could not produce a driver’s license,



       1
        The officers did issue a citation to the defendant for the traffic offense of failing to
signal before turning his vehicle.

                                               6
although he did have a valid license, the officers had the right to effectuate a physical

arrest to prevent the defendant from continuing to drive his vehicle without having his

driver’s license in his immediate possession if the initial stop was valid.

       The next question this court must determine is whether the officers had a right to

search the defendant’s motor vehicle if the initial stop was valid.



                                             V.

                            SEARCH OF THE VEHICLE



       The officers searched the defendant’s vehicle without benefit of a search warrant.

Before the search could be deemed valid, the State of Tennessee was required to

establish the search was conducted pursuant to one of the narrowly defined exceptions to

the warrant requirement.

       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); Hughes v. State, 588 S.W.2d 296, 301

(Tenn. 1979); Fuqua v. Armour, 543 S.W.2d 64, 66 (Tenn. 1976); State v. Shaw, 603

S.W.2d 741, 742 (Tenn. Crim. App. 1980). When the constitutionality of a warrantless

search is challenged by the accused, the State of Tennessee has the burden of

establishing by a preponderance of the evidence the search and resulting seizure were

justified pursuant to one of the recognized exceptions to the warrant requirement.

Coolidge, 403 U.S. at 454-55, 91 S.Ct. at 2032, 29 L.Ed.2d at 576; Hughes, 544 S.W.2d

at 301; State v. McClanahan, 806 S.W.2d 219, 220 (Tenn. Crim. App. 1991); State v.

Burton, 751 S.W.2d 440, 445-46 (Tenn. Crim. App.), per. app. denied (Tenn. 1988).

       A search incident to an arrest is a recognized exception to the warrant requirement

of the Fourth Amendment to the United States Constitution and Article I, § 9 of the

Tennessee Constitution. See Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38

L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d

427 (1973); Watkins, 827 S.W.2d at 295-96; State v. Reed, 634 S.W.2d 665 (Tenn. Crim.

App.), per. app. denied (Tenn. 1982). When an officer effectuates a lawful custodial arrest


                                              7
of a motor vehicle driver, the officer has the right to search the defendant’s person incident

to the arrest, Robinson, supra; State v. Banner, 685 S.W.2d 298, 301 (Tenn. Crim. App.

1984); the officer also has full authority to search the interior of the motor vehicle incident

to the arrest. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1980);

Watkins, 827 S.W.2d at 295-96. The United States Supreme Court said in Belton: “[W]hen

a policeman has made a lawful custodial arrest of the occupant of an automobile, he may,

as a contemporaneous incident of that arrest, search the passenger compartment of that

automobile.” 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775 (footnotes omitted).

       The fact the officers placed the defendant in the backseat of a patrol car before

searching his vehicle did not destroy the “contemporaneous” requirement of a search

incident to arrest. United States v. White, 871 F.2d 41, 44 (6th Cir. 1989); Watkins, 827

S.W.2d at 296; State v. Cabbage, 649 S.W.2d 589, 591-92 (Tenn. 1983); State v. Reed,

634 S.W.2d 665, 666 (Tenn. Crim. App.), per. app. denied (Tenn. 1982). See State v.

Moore, 775 S.W.2d at 378-79. In Reed, this court said a search after the person has been

“neutralized” does not invalidate the search made incident to arrest. 634 S.W.2d at 666.

       If the officers made a valid custodial arrest of the defendant, they had the right to

search the defendant’s vehicle incident to the arrest. The fact the officers neutralized the

defendant before commencing the search did not invalidate the search.

       This court must now determine whether the pretextual nature of the stop and

resulting seizure had the effect of invalidating the search and seizure of the cocaine.



                                             VI.

                         PRETEXTUAL NATURE OF STOP



       A pretextual stop is a stop that “occurs when the police use a legal justification to

make the stop in order to search a person or place in connection with an unrelated crime

as to which they lack reasonable suspicion.” United States v. Ferguson, 8 F.3d 385, 387

(6th Cir. 1993). Pretextual stops have long been condemned in Tennessee. Robertson

v. State, 184 Tenn. 277, 284, 198 S.W.2d 633, 634-35 (1947); Cox v. State, 181 Tenn.

344, 348, 181 S.W.2d 338, 340 (1944); State v. Sidney Williams, McMinn County No. 173,


                                              8
1991 WL 6895 (Tenn. Crim. App., Knoxville, April 30, 1991).

        Federal courts have established a broad standard for analyzing whether stops are

pretextual. In United States v. Ferguson, the Sixth Circuit held “so long as the officer has

probable cause to believe a traffic violation has occurred or was occurring, the resulting

stop is not unlawful and does not violate the Fourth Amendment.” 8 F.3d at 385. In United

States v. Whren, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the United States

Supreme Court held that traffic stops are reasonable under the Fourth Amendment when

the stop is based upon probable cause to believe a traffic offense was committed,

regardless of the subjective motivations of the officers, unless the stop is based upon

constitutionally impermissible reasons such as selective enforcement of the law based on

race.

        In the case of State v. Vineyard, _____ S.W.2d _____ (Tenn. 1997), the Tennessee

Supreme Court resolved the question of whether the Tennessee Constitution provides

greater protection to a motorist against pretextual stops. The court held the protection

provided pursuant to Article I, § 7 of the Tennessee Constitution is “coextensive with the

protection afforded by the Fourth Amendment of the United States Constitution. . . . [A]

stop based upon probable cause is valid under the Tennessee Constitution without regard

to the actual subjective motivations of police officers.” Slip op. at 2-3.

        In Vineyard, detectives conducting drug-trafficking surveillance observed the

defendants traveling 10 miles per hour over the speed limit and changing lanes without

using a turn signal. The detectives had received an anonymous tip that the vehicle would

be traveling through Bradley County towards Georgia on I-75 after the defendants had

obtained a large amount of marijuana. After the officers pulled the vehicle to the side of

the roadway, the defendants told the officers there were no weapons or drugs in the

vehicle. They gave the officers consent to search the vehicle. The detectives searched

the vehicle and seized more than 10 pounds of marijuana.

        The supreme court affirmed the denial of the defendant’s motion to suppress on the

basis the officers had probable cause to believe the defendants committed a traffic

violation. The court held the search was legally justified regardless of the officers’

subjective motivations as long as the stop was not based upon a constitutionally



                                              9
impermissible basis such as race. In summary, the supreme court adopted the standard

enunciated in Whren.



                                     CONCLUSION



       In conclusion, the judgment of the trial court must be reversed and this cause

remanded to the trial court for a new suppression hearing. This court cannot resolve all

of the factual issues raised during the suppression hearing.

       As previously stated, the trial court found it was “not necessary to determine whether

the initial stop was justified legally or factually.” The evidence adduced at the suppression

hearing conflicted as to whether the defendant made a lefthand turn without giving an

appropriate signal. Officers Stackhouse and Dillon testified the defendant failed to give an

appropriate signal. The defendant testified he gave a proper signal before making the left

turn. Only the trier of fact can resolve this conflict in the evidence.



                                    ____________________________________________
                                           JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
      WILLIAM M. BARKER, JUDGE



______________________________________
         JOE G. RILEY, JUDGE




                                             10
