         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 25, 2003

                 STATE OF TENNESSEE v. EDWARD D. HANEY

                   Direct Appeal from the Circuit Court for Cocke County
                           No. 8633    Ben W. Hooper, II, Judge



                                 No. E2002-02189-CCA-R3-CD
                                      September 2, 2003

The State appeals the trial court’s suppression of twenty-five rocks of cocaine seized from the
defendant. Because the trial court “did not feel comfortable” in elaborating the reason why the
evidence should be suppressed, we remand for the trial court to make findings of fact and
conclusions of law.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR. and ROBERT W. WEDEMEYER , JJ., joined.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
Al C. Schmutzer, Jr., District Attorney General; and James B. Dunn, Assistant District Attorney
General, for the appellant, State of Tennessee.

Edward C. Miller, District Public Defender, for the appellee, Edward D. Haney.


                                             OPINION

         The State contends that the trial court erred by suppressing the cocaine seized from the
defendant, Edward D. Haney, pursuant to a lawful search incident to arrest. The defendant was
indicted by the Cocke County Grand Jury for possession of cocaine in excess of .5 grams with the
intent to sell; possession of cocaine in excess of .5 grams with the intent to deliver; and unlawfully
driving with a suspended, cancelled, or revoked driver’s license. On June 17, 2002, the defendant
filed a motion to suppress the cocaine seized from his person, arguing that it was the product of an
unlawful search. The trial court conducted a hearing on June 27, 2002, and reserved ruling on the
suppression of the cocaine upon the submission of case law by both parties. On September 4, 2002,
the trial court entered an order suppressing the cocaine seized from the defendant.
                                                Facts

        On June 9, 2001, Newport Police Officer James Roach, Jr., observed the defendant’s vehicle
parked in the middle of a highway. Officer Roach activated his blue lights and approached the
vehicle. Officer Roach recognized the defendant as he approached the vehicle and knew from prior
instances that the defendant did not have a drivers’ license. When asked by Officer Roach for his
drivers’ license, the defendant admitted that he did not have one. After contacting dispatch, Officer
Roach confirmed that the defendant’s license had been revoked. Officer Roach then asked the
defendant to step out of the car so that he could arrest the defendant. The defendant placed his hands
on the vehicle and was searched. Officer Roach felt a round object in the defendant’s left pocket and
found that it was a pill bottle containing twenty-five rocks of cocaine.

         At the suppression hearing, the trial court stated that it concluded the “evidence that was
seized from Mr. Haney must be suppressed.” The trial court further stated, “I don’t feel comfortable
in elaborating upon my reasoning behind that but I just felt that under the authority that I did review
that it was a proper case to suppress the evidence.”

                                              Analysis

        When reviewing a trial court’s ruling on a motion to suppress, “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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). We afford to the prevailing party in the trial court the strongest legitimate view of the
evidence and all reasonable and legitimate inferences that may be drawn from that evidence. The
findings of a trial court in a suppression hearing will be upheld unless the evidence preponderates
against those findings. Id. 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). We will uphold the trial court’s analysis unless the evidence preponderates against
it and will review de novo the application of the law to the facts.

        The issue of the officer’s right to stop the defendant must be resolved before any other
questions are reached. It is well-settled law that a police officer may make an investigatory stop
when the officer has a reasonable suspicion that “criminal activity may be afoot.” Terry v. Ohio, 392
U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968); see also State v. Bridges, 963 S.W.2d 487,
492 (Tenn. 1997). 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 “there is reasonable likelihood that the offense
would continue . . . .” Tenn. Code Ann. § 40-7-118(c)(2).

        Under the Tennessee and United States Constitutions, a search or seizure conducted without
a warrant is presumed unreasonable. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971);
State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). Therefore, evidence seized as a result of
search or seizure conducted without a warrant must be suppressed unless the State proves by a


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preponderance of the evidence that the search or seizure was reasonable under the United States and
Tennessee Constitutions. See Coolidge, 403 U.S. at 454-55; Simpson, 968 S.W.2d at 780. Evidence
discovered as a result of a warrantless search is subject to suppression unless the State is able to
demonstrate that the search or seizure was carried out pursuant to one of the narrowly defined
exceptions to the requirement that the police first obtain a warrant. See State v. Bridges, 963 S.W.2d
487, 490 (Tenn. 1997) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022,
2032, 29 L. Ed. 2d 564 (1971)). A warrantless search incident to a lawful arrest is one of those
narrowly defined exceptions. See State v. Watkins, 827 S.W.2d 293, 295-96 (Tenn. 1992) (citing
New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981). Police are
permitted to search the body of the person arrested, as well as the immediately surrounding area. See
Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)). “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.” State v. Crutcher, 989 S.W.2d 295, 300 (Tenn.
1999). When an officer searches a person incident to arrest, the officer may make a “full” search of
the person; the officer is not limited to performing a “limited pat-down” for weapons. See id. at 300-
01; United States v. Robinson, 414 U.S. 218, 235 (1973). Justification for such a search and seizure
is found in the dual purpose of removing any weapons and to prevent the concealment or destruction
of any evidence on the arrestee’s person. See Chimel, 395 U.S. at 763, 89 S. Ct. at 2040.

         The defendant alleges that a discrepancy exists between the information contained in Officer
Roach’s affidavit of complaint and his testimony at trial. Officer Roach testified that he stopped to
check the vehicle because the vehicle was parked in the middle of the road. He asked for the
defendant’s license, and the defendant told him that he did not have one. He testified that he
searched the defendant’s pocket and found a pill bottle containing the cocaine. However, Officer
Roach testified at the suppression hearing that he called his dispatch to verify if the defendant’s
license had been revoked. He stated that it was his intention to place the defendant under arrest for
driving on a revoked license before conducting a search of the defendant’s person. Officer Roach
testified that his memory of the events as they transpired would have been better on the date of the
offense as opposed to the date of his testimony at the suppression hearing.

        It is the function of the trial court, not this Court, to judge the credibility of the witnesses, to
weigh the evidence, and to resolve factual issues. See State v. Cabbage, 571, S.W.2d 832 (Tenn.
1978). This Court defers to the fact-finders to make credibility assessments of witnesses who testify
at suppression hearings. See State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State v. Norris, 47
S.W.3d 457, 468 (Tenn. Crim. App. 2000). The trial court has an affirmative duty to state the
essential findings on the record. See T.R.A.P. 12(e). The recording of the trial court’s reasoning is
to guarantee the preparation of a proper record for appellate review. State v. Ervin, 939 S.W.2d 581,
584 (Tenn. Crim. App. 1996). A trial court that fails to comply with this duty runs the risk of having
the judgment vacated and the case remanded for factual findings. See State v. Alonzo Gentry, 1998
Tenn. Crim. App. LEXIS 687, No. 02C01-9708-C-00335, Gibson County (Tenn. Crim. App. July
2, 1998) (remanding the case to the trial court for factual findings on a motion to suppress).




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        We conclude the validity of the search falls squarely upon the credibility of the testimony of
Officer Roach. If the trial court believes Officer Roach approached a vehicle because it was parked
in the middle of the road and the Officer had prior knowledge that the defendant had no driver’s
license or the defendant’s license had been revoked, the search of the defendant’s car was incident
to a lawful arrest and would appear valid.

       If, on the other hand, the trial court does not believe Officer Roach’s testimony as to why and
how he approached the vehicle, the detention of the defendant may not be considered a valid stop
and therefore, the twenty-five rocks of cocaine may be suppressed.

       There are times when this Court is unable to conclude by implication that the trial court
accredited the testimony of a particular witness. Here, we are unable to conclude whether the trial
court believed Officer Roach’s account, given the fact that the trial court suppressed the evidence
and “did not feel comfortable in elaborating” upon the reasoning behind its decision.

                                            Conclusion

        Accordingly, we remand for the trial court to make pertinent findings and conclusions of law
based solely upon the record as it now exists. The trial court should follow the guidelines set out
herein and elaborate upon why the evidence should be suppressed.




                                                       ______________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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