         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE         FILED
                              MARCH 1998 SESSION
                                                         May 28, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,                     )     C.C.A. 03C01-9709-CR-00334
                                        )     SULLIVAN COUNTY
                                        )
              Appellant,                )     Hon. Phyllis H. Miller, Judge
                                        )
vs.                                     )     (Possession of Marijuana and
                                        )     Cocaine For Resale,
                                        )     Possession of Drug Para-
JACK EDWARD PIERSON,                    )     phernalia, Driving On Revoked
                                        )     License, Misuse of Vehicle
                                        )     Registration)
              Appellee.                 )     No. S39583



FOR THE APPELLANT:                            FOR THE APPELLEE:


JOHN KNOX WALKUP                              THOMAS McKINNEY
Attorney General & Reporter                   222 E. Center Street
                                              Kingsport, TN 37660
ELLEN H. POLLACK
Assistant Attorney General
Cordell Hull Building - 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243

H. GREELEY WELLS JR.
District Attorney General

EDWARD WILSON
Assistant District Attorney
P.O. Box 526
Blountville, TN 37617


OPINION FILED:_______________


AFFIRMED



CORNELIA A. CLARK
Special Judge




                                    OPINION
                 The State appeals the trial court’s grant of defendant’s motion to

          suppress evidence seized based on an invalid warrantless search. The

          judgment of the trial court is affirmed.

                 On July 15, 1996, at about 6:25 p.m., the defendant was operating his

          motorcycle on a public road in Kingsport, Tennessee, without having his

          headlight illuminated.1 Trooper Paul Mooneyham of the Tennessee Highway

          Patrol was traveling on the same road in the opposite direction. As the two

          vehicles approached each other, Trooper Mooneyham flashed his lights or

          pointed his finger toward defendant’s motorcycle to indicate the problem.

          Defendant did not understand the trooper’s signal and did not initially activate

          his headlight. The defendant turned off onto another street. The trooper made

          a turn, traveled down a parallel street, and stopped the defendant.

                 During his initial investigation after the stop, Trooper Mooneyham

          learned that although the defendant had a Virginia driver’s license, his

          Tennessee driver’s license had been revoked. Trooper Mooneyham also

          discovered that the motor vehicle license tag on the motorcycle was registered

          not to that vehicle, but to another vehicle belonging to the defendant. Trooper

          Mooneyham placed the defendant in the front seat of his police car and

          advised him that he was going to issue him citations for the light violation, the

          improper tag registration, and for the more serious offense of driving on a

          revoked license. Trooper Mooneyham did not place the defendant under

          custodial arrest. Before starting his paperwork, however, the officer advised

          the defendant that he was going to “... look and see what you’ve got in your

          motorcycle.” The officer directed the defendant to remove the saddlebags on




      1
          This court is unable from the record to determine precisely what statute
Trooper Mooneyham believed the defendant to be violating when he first observed him.
During his testimony he made no direct reference to a statute number. The citation
itself was not included in the record. Defendant was not ultimately indicted for any
headlight violation. The State argues, and the court presumes, that the trooper’s
reference was to Tenn. Code Ann. §55-8-164(b), which requires motorcycle headlamps
to be illuminated.
                                             2
his motorcycle and to remove the contents from the bag. From inside the

saddlebag the defendant removed a black leather purse, which he initially

placed behind his back. The officer demanded the bag, and found that it

contained cocaine, marijuana, and drug paraphernalia. The officer testified

that he believed the search was incident to a valid arrest, because he could

have arrested the defendant for driving on a revoked license even though he

did not.

       Defendant does not question the legality of the initial stop made by the

trooper based on his observation that the defendant operated a motor vehicle

on a public roadway without an illuminated headlight. Defendant also

concedes that after the stop was made, the trooper learned that defendant was

in violation of two other code sections: Tenn. Code Ann. §55-4-129 (a)

prohibiting improper vehicle registration, and Tenn. Code Ann. §55-50-504

(a)(1), prohibiting him from driving a motor vehicle on a public roadway at a

time when his privilege to do so in Tennessee had been revoked. He

questions only the right of the trooper to conduct a search of his saddlebags

when there was no custodial arrest and no need to inventory the contents.

       When a police officer makes a warrantless search, the State has the

burden to show that the search was conducted within a recognized exception

to the general warrant requirement. State v. McClanahan, 806 S.W. 2d 219,

220 (Tenn. Crim. App. 1991). The State does not argue that the officer

actually had probable cause to search the motorcycle saddlebags. See State

v. Leveye, 796 S.W. 2d 948, 951 (Tenn. 1990). Neither does the State argue

that the search in question was part of an inventory of the contents a lawfully

impounded vehicle. See Drinkard v. State, 584 S.W. 2d 650 (1979). Instead,

the State asserts only that the search was incident to a lawful custodial arrest.




                                        3



       When an officer has made a lawful custodial arrest of the occupant of a
vehicle, he may, as a contemporaneous incident of that arrest, search the

passenger compartment of the automobile. New York v. Belton, 453 U.S. 454,

101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); State v. Watkins, 827 S.W. 2d 293,

295-96 (Tenn. 1992). In addition, a police officer may conduct a search of the

passenger compartment of a vehicle incident to a custodial arrest even when

the arrested person is neutralized in the backseat of a squad car. State v.

Reed, 634 S.W. 2d 665, 666 (Tenn. Crim. App. 1982). The sole issue in this

case concerns whether the detainment in question was a “custodial” arrest.

       Tenn. Code Ann. §40-7-118(b)(1) requires a law enforcement officer

arresting someone for certain misdemeanors committed in his presence to

issue a citation in lieu of continued custody. §40-7-118(b)(3)(C) gives the

officer the discretion actually to make a custodial arrest for driving on a

revoked or suspended license. Based on the facts presented to him, Trooper

Mooneyham had the discretion to make a custodial arrest of the defendant.

Had he done so, he would have had the right to conduct a reasonable search

incident to arrest, and our inquiry in this court would be the reasonableness of

the search conducted. The State argues that the custodial arrest was effected

when the defendant was asked to sit in the front seat of the patrol car while the

citations were being issued. However, Trooper Mooneyham conceded in his

testimony that he did not arrest or handcuff the defendant until after the drugs

were found in the saddlebags.

       The trial court, in its detailed findings of fact, agreed with the arguments

made by defendant, and granted the motion to suppress. After careful review

of the record, we conclude that the evidence does not preponderate against




                                         4




the trial court’s finding that there was no custodial arrest and, therefore, that no
exception to the warrant requirement was shown. We affirm the judgment of

the trial court.




                                      __________________________
                                      CORNELIA A. CLARK
                                      SPECIAL JUDGE



CONCUR:




____________________________
JOHN H. PEAY
JUDGE



____________________________
PAUL G. SUMMERS
JUDGE




                                 5
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE

                         MARCH 1998 SESSION
STATE OF TENNESSEE,                      )      C.C.A. 03C01-9709-CR-00334
                                         )      SULLIVAN COUNTY
                                         )
             Appellant,                  )      Hon. Phyllis H. Miller, Judge
                                         )
vs.                                      )      (Possession of Marijuana and
                                         )      Cocaine For Resale,
                                         )      Possession of Drug Para-
JACK EDWARD PIERSON,                     )      phernalia, Driving On Revoked
                                         )      License, Misuse of Vehicle
                                         )      Registration)
              Appellee.                  )      No. S39583


                                  JUDGMENT

        Came the appellant, the State of Tennessee, and also came Jack
Edward Pierson, by counsel and this case was heard on the record on appeal
from the Circuit Court of Sullivan County; and upon consideration thereof, this
court is of the opinion that there is no reversible error in the judgment of the
trial court.

       Our opinion is hereby incorporated in this judgment as if set out
verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of
the trial court is AFFIRMED, and the case is remanded to the Circuit Court of
Sullivan County for execution of the judgment of that court and for collection of
costs accrued below.

     Costs of this appeal will be paid by the appellant, the State of
Tennessee for which let execution issue.

                                         PER CURIAM

                                         John H. Peay, Judge
                                         Paul G. Summers, Judge
                                         Cornelia A. Clark, Special Judge
