         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 January 22, 2015 Session

                  STATE OF TENNESSEE v. MALIK HARDIN

                    Appeal from the Criminal Court for Knox County
                        No. 101617A     Bob R. McGee, Judge


                   No. E2014-00873-CCA-R3-CD – Filed June 12, 2015


D. KELLY THOMAS, JR., dissenting.

        I respectfully disagree with the majority’s conclusion that the Defendant’s custodial
arrest for criminal trespass was proper. The Defendant was arrested for criminal trespass
based on the exception to the cite and release statute that allows for a custodial arrest for a
misdemeanor when “[t]here is a reasonable likelihood that the offense would continue or
resume . . . .” See Tenn. Code Ann. 40-7-118(c)(2). Because I do not believe that exception
was properly applied in this case, I have concluded that the Defendant was subjected to a
custodial arrest in violation of Tennessee Code Annotated 40-7-118(b)(1). Accordingly, I
would not reach the Defendant’s second issue challenging the legality of the search of his
vehicle following his arrest.

        I cannot agree with the trial court’s “facile observation” that because the Defendant
was actually on KCDC property at the time he was arrested, he would have literally been
“continuing” to criminally trespass had a citation been issued. This reasoning in effect
carves out an exception to the cite and release statute for defendants arrested for criminal
trespass. Although it is not impossible to imagine a situation where police officers might
arrest a trespasser after that person has left the prohibited property, this will seldom be the
case. What is far more likely is that, as occurred in the present case, police officers will
come into contact with a trespasser while that person is still on the property. To allow a full
custodial arrest each time this occurs, based solely on the fact that the citation would have to
be issued while still on the property, is at odds with the presumptive right to be cited and
released for the misdemeanor of criminal trespass and the legislature’s expressed policy in
adopting such a rule.

       The majority relies upon State v. Jackson, 313 S.W.3d 270, 273 (2008), to support its
conclusion that the Defendant would, with “certainty,” be continuing to trespass had he been
issued a citation and released. However, in my mind, Jackson is distinguishable from the
present case. The main difference between this case and Jackson lies in the nature of the
misdemeanor offenses for which the respective defendants were arrested. In Jackson, the
defendant was arrested for running a red light and driving without a license. Id. at 271.
Because he was the sole occupant of the car, there was indeed a certainty that as soon as he
was released and got back in his car to drive away, the misdemeanor would continue or
resume. That is not the case for the offense of criminal trespass. If a person is caught
trespassing, he or she can be ordered to leave the premises. To say that a person who is
issued a citation for criminal trespass, and has been told to leave the premises, would still be
offending during his or her exit from the property, would ostensibly mean that during that
exit, the person could be re-arrested for criminal trespass.

        Relatedly, it bears mentioning that the cite and release statute actually delineates
several misdemeanors for which an officer does have discretion to effect a custodial arrest
rather than to issue a citation and release the misdemeanant. Those misdemeanors include:
“the offense of theft which formerly constituted shoplifting”; issuance of bad checks; use of a
revoked or suspended driver’s license; assault or battery “if the officer believes there is a
reasonable likelihood that persons would be endangered by the arrested person if a citation
were issued”; or prostitution “if the arresting party has knowledge of past conduct . . . or has
reasonable cause to believe that the [arrestee] will attempt to engage in prostitution activities
within a reasonable period of time if not arrested.” Tenn. Code Ann. § 40-7-118(b)(3)(A)-
(E). The legislature chose to bestow discretion upon police officers who effect arrests for
certain misdemeanors, and it chose not to include criminal trespass in that category.

        Furthermore, it is clear that both the arresting officer and the trial court focused on the
likelihood that, in the future, the Defendant would be motivated to return to KCDC property.
The court noted that “there are activities going on there that they want to participate in. And
there’s no reason to suggest that those events or those activities would cease to exist. . . .
[T]here was [sic] very good objective indications that the [D]efendant would continue to
violate the law in this regard.” The arresting officer testified similarly, stating that “[the
Defendant] may leave for a moment, sir, but he still had the ability to return to the scene . . .
.” From this, it is clear that the trial court assessed the officer’s reliance on subsection (c)(2)
with respect to the likelihood that the Defendant had “no impediment” to coming back onto
KCDC property in the future. Of course, there will always be a possibility that a
misdemeanant who is released from custody will re-offend at some future time.

        Because I have concluded that the Defendant’s custodial arrest for a misdemeanor
was a violation of his right against unreasonable search and seizure, see Walker, 12 S.W.3d
460, 467 (Tenn. 2000), I would further conclude that the evidence obtained subsequent to the
illegal arrest should have been excluded.

       Based on the foregoing, I would reverse the judgment of the trial court and dismiss
the charges against the Defendant.

                                                      _________________________________
                                                      D. KELLY THOMAS, JR., JUDGE




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