                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                          (HEARD AT CLARKSVILLE)

                                                                      FILED
                                                                        April 12, 1999
STATE OF TENNESSEE,                        )     FOR PUBLICATION
                                                               Cecil Crowson, Jr.
                                           )                       Appellate Court Clerk
       Plaintiff-Appellant,                )     Filed: April 12, 1999
                                           )
v.                                         )     SUMNER CRIMINAL
                                           )
BOBBY CRUTCHER,                            )      Hon. Jane Wheatcraft,
                                           )         Judge
                                           )
       Defendant-Appellee.                 )
                                           )
                                           )     No. 01S01-9804-CR-00081
                                           )




                               DISSENTING OPINION

       I respectfully dissent from the majority’s decision in this case. In my view,

the appellee had been arrested at the time his motorcycle was searched;

therefore, the search was valid as incident to a lawful arrest. Even assuming,

however, that the appellee had not been technically arrested at the time the

search occurred, the search and arrest were substantially contemporaneous;

therefore, the search was constiutionally valid as incident to a lawful arrest.

Accordingly, I would reverse the judgments of the lower courts which ordered

suppression of the evidence seized during the search and remand this cause to

the trial court for further proceedings.
                                           I.

                         SEARCH INCIDENT TO ARREST

       The Fourth Amendment to the United States Constitution provides that

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated. . . .”

Similarly Article 1, Section 7 of the Tennessee Constitution guarantees “that the

people shall be secure in their persons, houses, papers and possessions from

unreasonable searches and seizures . . . .” “[A]rticle I, section 7 is identical in

intent and purpose with the Fourth Amendment.” State v. Downey, 945 S.W.2d

102, 106 (Tenn. 1997). Therefore, both the federal and the state constitutions

protect against unreasonable “searches” and “seizures.” As the majority decision

recognizes, under both the federal and state constitutions, a warrantless search or

seizure is presumed constitutionally unreasonable unless the State demonstrates

that the search or seizure was conducted pursuant to one of the narrowly defined

exceptions to the warrant requirement. State v. Simpson, 968 S.W.2d 776, 780

(Tenn. 1998).



       The State contends that the search in this case was conducted in

accordance with one of those narrowly defined exceptions to the warrant

requirement -- a search incident to a lawful arrest. Chimel v. California, 395 U.S.

752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); State v. Watkins, 827

S.W.2d 293, 295 (Tenn. 1992). When police officers make a lawful arrest of the

occupant of an automobile, a search of the person arrested and of the passenger

compartment of the vehicle is constitutionally permissible. New York v. Belton,



                                          -2-
453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981); Watkins, 827

S.W.2d at 295-96. Officers may conduct the search of the passenger

compartment of the automobile even though the person arrested has been placed

in the back seat of a police car. Id.



       In this case, the trial court and Court of Criminal Appeals found that the

appellee, Bobby Crutcher, had not been lawfully arrested prior to the search, and

as a result the lower courts held the search constitutionally invalid as incident to a

lawful arrest. In affirming the decisions of the lower courts, the majority

characterizes the lower courts’ conclusion that no lawful arrest occurred prior to

the search as a factual finding and states that the evidence in the record does not

preponderate against that finding.



       While the majority states the correct standard of appellate review with

respect to factual findings, State v. Odom, 928 S.W.2d 18, 22-23 (Tenn. 1996),

the lower court’s conclusion that the appellee had not been lawfully arrested at the

time of the search is not a finding of fact, it is a conclusion of law, derived from an

application of the law to the undisputed facts in this case. This Court is not bound

by the conclusions of law of the lower courts and reviews such conclusions de

novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Reviewing de novo

the legal conclusions of the lower courts, it is clear that the trial court and the

Court of Criminal Appeals erred in finding the search in this case constitutionally

invalid.



       In concluding that the appellee had not been lawfully arrested, the majority

                                           -3-
and the lower courts cite decisions of this Court from 1968 and 1947 for the

proposition that an arrest in Tennessee is “the taking, seizing, or detaining of the

person of another, either by touching or putting hands on him, or by any act which

indicates an intention to take him into custody and subjects the person arrested to

the actual control and will of the person making the arrest.” West v. State, 221

Tenn. 178, 184, 425 S.W.2d 602, 605 (1968); Robertson v. State, 184 Tenn. 277,

284, 198 S.W.2d 633, 635-36 (1947). The undisputed facts in this record

demonstrate that Officer Moniz apprehended Crutcher as he was crawling from

the roadside brush, seized Crutcher’s arm, and began the handcuffing process.

These are certainly acts which “indicate an intention to take” the appellee into

custody. In addition, Crutcher was lying on the roadside and subjected to the

actual control and will of Officer Moniz at the scene of the accident. In my view,

therefore, even applying the definition employed by the majority, the appellee had

been lawfully arrested at the scene of the accident prior to the search. However,

the definition of arrest applied by the majority and the lower courts is no longer the

applicable standard.



       Under current applicable law, an arrest occurs if, in view of all of the

circumstances surrounding the incident, a reasonable person would have

understood that he or she was not free to leave. California v. Hodari D., 499 U.S.

621, 627-28, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991); Michigan v.

Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979 (1988); INS v. Delgado, 466

U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Florida v. Royer,

460 U.S. 491, 502, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983) (plurality

opinion); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877,

                                          -4-
64 L.Ed.2d 497 (1980)(plurality opinion of Stewart, J.); State v. Moore, 776

S.W.2d 933, 937 (Tenn. 1989); State v. Bragan, 920 S.W.2d 227, 242 (Tenn.

Crim. App. 1995); State v. Darnell, 905 S.W.2d 953, 957 (Tenn. Crim. App. 1995);

State v. Greene, 929 S.W.2d 376 (Tenn. Crim. App. 1995); 3 Wayne R. LaFave,

Search and Seizure § 5.1(a) (1996); cf. State v. Anderson, 937 S.W.2d 851, 855

(Tenn. 1996) (test to determine whether a person is in custody and entitled to

Miranda1 warnings prior to interrogation is “whether a reasonable person in the

suspect’s position would consider himself or herself deprived of freedom of

movement to a degree associated with a formal arrest.”). It is an objective test

which does not depend upon the subjective intention of the officer nor the

subjective perception of the suspect. The subjective intent of the officer is

relevant to the assessment only to the extent that the officer’s intent has been

conveyed to the person confronted. Chesternut, 486 U.S. at 575 n.7, 108 S.Ct. at

1980 n.7; Mendenhall, 446 U.S. at 554 n.6, 100 S.Ct. at 1877 n. 6 (plurality

opinion of Stewart, J.); 3 Wayne R. LaFave, Search and Seizure § 5.1(a) (1996);

see also Stansbury v. California, 511 U.S. 318, 323-25, 114 S.Ct. 1526, 1529-30,

128 L.Ed.2d 293 (1994), citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct.

3138, 3150, 82 L.Ed.2d 317 (1984); Anderson, 937 S.W.2d at 854

(uncommunicated belief that person is a suspect is irrelevant to Fifth Amendment

custody determination).



       Factors courts have considered to determine whether an arrest has

occurred include the following: the time, place and purpose of the encounter; the



       1
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 69 4 (1966).

                                                  -5-
words used by the officer; the officer’s tone of voice and general demeanor; the

officer’s statements to others who were present during the encounter; the

threatening presence of several officers; the display of a weapon by an officer;

and the physical touching of the person of the citizen. Mendenhall, 446 U.S. at

554, 100 S.Ct. at 1877; People v. Pancoast, 659 P.2d 1348 (Colo. 1982); 3

Wayne R. LaFave, Search and Seizure § 5.1(a) (1996).2



         The majority opinion goes into great detail to distinguish between various

Fourth Amendment seizures of the person and refuses to apply the “reasonable

person” standard because it “fails to recognize the distinction between ‘seizure’

and ‘arrest.’” I feel the distinction drawn by the majority is immaterial in the

context of this appeal. While the scope of search permissible and the term used

to describe a seizure vary, depending upon the quantum of individualized

suspicion supporting the seizure, the definition of seizure does not vary. For

example, if an officer has only a reasonable, articulable suspicion that a person

has engaged in, or is about to engage in a crime, the officer may seize the person,

but the duration of the seizure, and the scope of the search is limited to an

investigatory stop and frisk. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968). Though the scope of the constitutionally permissible search is limited

because the seizure is based only upon reasonable, articulable suspicion, the test


         2
           Comp are Anderson, 937 S.W .2d at 855 (factors relevant to determination of whether a
reasonable person would consider himself or herself in custody for Fifth Amendment purposes
include the time and location of the interrogation; the duration and character of the questioning; the
officer’s tone of voice and general demeanor; the suspect’s method of transportation to the place of
questioning; the number of police officers present; any limitation on movement or other form of
restraint imposed on the suspect during the interrogation; any interactions between the officer and
the suspect, including the words spoken by the officer to the suspect, and the suspect’s verbal or
nonverbal responses; the extent to which the suspect is confronted with the officer’s suspicions of
guilt or eviden ce of gu ilt; and the ex tent to whic h the sus pect is m ade aw are that he or she is fr ee to
refrain from answering que stions or to end the interview at will.)

                                                      -6-
to determine whether the person has been seized is the same -- in view of all the

circumstances surrounding the incident, would a reasonable person have

understood that he or she was not free to leave. The standard for determining

whether a seizure has occurred remains the same - regardless of whether it is an

“arrest,” based upon probable cause or an “investigatory stop,” based upon

reasonable articulable suspicion. It is the individualized suspicion which varies

and delineates the scope of the search and the term used to describe the seizure.

A lawful arrest, sufficient to support the search incident to arrest exception to the

warrant requirement, is simply a Fourth Amendment “seizure” which is based

upon probable cause. Therefore, in determining whether a lawful warrantless

arrest has occurred, two questions must be answered: (1) did a seizure of the

person occur, i.e., in view of all the circumstances surrounding the incident, would

a reasonable person have understood that he or she was not free to leave; and

(2) if so, was the seizure based upon probable cause. In this case, the majority

recognizes that “Officer Moniz had probable cause to make an arrest at the

scene.” Therefore, the difference of opinion relates only to the first question --

whether a seizure occurred. The distinctions drawn by the majority are irrelevant

to that question.



       When the correct principle of law is applied to the circumstances of this

case, it is clear that the appellee had been lawfully arrested at the time the search

of his motorcycle occurred. The incident giving rise to this appeal occurred when

Officer Moniz observed three motorcyclists pull away from a traffic light at a high

rate of speed. When Officer Moniz activated his siren and lights, two of the

motorcyclists pulled over. Crutcher, however, fled from Officer Moniz at speeds in

                                          -7-
excess of one hundred miles per hour through a residential area just outside the

city of Gallatin in Sumner County. Crutcher crashed his motorcycle and was

apprehended by Officer Moniz as he was crawling out of the roadside brush. This

was not a routine traffic stop which ordinarily does not result in an arrest. Officer

Moniz witnessed Crutcher commit criminal offenses, reckless endangerment and

evading arrest.3 Crutcher was already on the ground when Officer Moniz arrived

at the accident scene. Officer Moniz proceeded directly to Crutcher, seized

Crutcher’s arm, and moved it into a position to handcuff Crutcher. Officer Moniz

released Crutcher’s arm and did not handcuff him only because Crutcher

complained of pain and injuries. 4 Though he did not handcuff Crutcher, Officer

Moniz remained with him and was beside Crutcher when Officer Rich Evans

arrived on the scene. Both officers stayed with Crutcher until he was taken to the

hospital by ambulance. They repeatedly told Crutcher to remain still. Fortunately

for Crutcher, the ambulance arrived quickly. 5 Though neither informed Crutcher

that he was under arrest, formal words are not a condition precedent to the


         3
          The m ajority’s repeated references to issuance and service of an arres t warrant are
puzzling. It is beyond dispute that the officer in this case had sufficient grounds to make a
warran tless arre st. Office r Moniz w itnessed the defe ndant c omm itting crime s. Tenn . Code A nn.
§ 40-7-1 03(a)(1 ) (1997 R epl.).

         4
          The trial judge in this case found that the “police officers acted very professionally. They
probably saved this Defendant’s life by not jerking him off the ground and arresting him, as it turned
out he had a broken neck.” Yet, because of the officer’s professional conduct, the majority finds that
no arrest occurred, concludes the ensuing search is constitutionally infirm, and suppresses the
evidence found during the search. The majority’s holding fails to recognize that the purpose of the
exclus ionary rule is to d eter official law enforce men t wrongd oing, see State v. Huddleston, 924
S.W.2d 666, 672 (Tenn. 1996), not to punish completely appropriate and highly professional police
condu ct.

         5
           The ma jority re lies up on th e fac t that th e app ellee w as k ept a t the a ccid ent s cen e for only
a few m inutes as suppo rt for its conc lusion that n o arrest o ccurre d, stating, “[t]he evidenc e reflects
that the appellee was kept at the accident scene for only a few minutes while waiting on the arrival
of an ambulance. Without more, there is no showing that the appellee was being detained by police
for a ny rea son othe r than me dica l treatm ent.” The se s tatem ents imp ly that p olice o ffice rs sh ould
detain injured suspects in need of medical attention on the side of the highway until all the
formalities of a station house arrest are com pleted. That is certainly not a policy which this Court
should e ncoura ge either e xplicitly or implicitly.

                                                        -8-
existence of a lawful arrest.6 Chesternut, 486 U.S. at 574, 108 S.Ct. at 1980.

Moreover, “an arrested person is not invariably taken to a police station or

confined; if an arrestee is taken to the police station, that is no more than a

continuation of the custody inherent in the arrest status.” Illinois v. Lafayette, 462

U.S. 640, 654, 103 S.Ct. 2605, 2609, 77 L.Ed.2d 65 (1983). Finally, the testimony

of Officers Moniz and Evans that Crutcher was not arrested at the scene of the

accident does not control the determination. “Arrest” is a legal term of art, and a

court must apply the law to the facts to determine whether an arrest has occurred.

Watkins, 827 S.W.2d at 296.



         For all these reasons, I disagree with the majority and would conclude that

Crutcher had been arrested at the time his motorcycle was searched because any

reasonable person in Crutcher’s position would have understood that he was not

free to leave in light of the circumstances. 7 That being the case, I am of the

opinion that the warrantless search of Crutcher’s motorcycle was valid as a search

incident to the lawful warrantless arrest.




                                                          II.

                                       RAWLINGS V. KENTUCKY


         6
           Though the majority repeats the well-settled proposition that formal words are not required
to eff ect a n arre st, the ma jority fa ils to ap ply the rule in this c ase . Give n the ma jority de cisio n, it will
be difficult fo r police to ar rest either a n intoxicate d or unc onsciou s perso n beca use it is difficu lt to
inform such a person, either by words or actions, that he or she is being arrested.

         7
         Indeed, “reasonable” is hardly an appropriate descriptive term for a defendant who
believes that he is free to leave the scene of an accident which results because the defendant fled
from police on a highway which travels through a residential area at speeds in excess of one
hundred m iles per hour.

                                                          -9-
        However, even assuming that Crutcher had not been arrested at the time

this search occurred, I am of the opinion that the warrantless search was

constitutionally valid under the reasoning of Rawlings v. Kentucky, 448 U.S. 98,

111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980). In that case, the United

States Supreme Court held that a search may precede a formal arrest if the officer

has probable cause to arrest at the time of the search and the fruits of the search

were not necessary to support probable cause to arrest.8 See Warden v. State,

214 Tenn. 314, 320, 379 S.W .2d 788, 791 (1964) (search which precedes arrest

will be upheld if the two may be regarded as part of one and the same

transaction).



        In this case, there is no question that Officer Moniz had probable cause to

arrest Crutcher at the scene of the accident for reckless endangerment and

evading arrest. Moreover, none of the items discovered during the search of


        8
           This principle has been applied in an overwhelm ing majority of jurisdictions both before
and after the United States Supreme Court rendered its decision in Rawlings. See Seay v. Sta te,
651 So .2d 81, 83 (Ala. Crim . App. 199 4); State v. Earl, 970 S.W .2d 789, 7 92 (Ark . 1998); State v.
Vale nzue la, 589 P.2d 1306, 13 07 (Ariz. 19 79); People v. Simon , 290 P.2d 531, 533 (Cal. 1955);
People v. Sutherland, 683 P.2d 1192, 11 96 (Co lo. 1984); State v. Trine, 673 A.2d 1098, 1110
(Conn . 1996); Hill v. U.S., 627 A.2d 975, 978 (D.C. 19 93); Collier v. State , 338 S.E.2d 724, 725 (Ga.
App. 19 85); State v. Delmondo, 512 P.2d 551, 554 n.2 (Haw ai’i 1973); State v. Crabb, 688 P.2d
1203, 12 09 (Idah o App. 1 984); People v. Kolichman, 578 N.E .2d 569, 5 74 (Ill. App. 19 91); Santana
v. State , 679 N.E .2d 1355 , 1360 (Ind . App. 199 7); State v. Peterson, 515 N.W.2d 23, 25 (Iowa
1994); Com mon wealth v. B rillante, 503 N.E .2d 459, 4 62 n.5 (M ass. 19 87); Comm onwealth v.
Mantinez, 692 N.E .2d 92 (M ass. Ap p. 1998) ; Lee v. Sta te, 537 A.2d 235, 247 (Md. 19 88); State v.
Brooks,, 634 A.2d 1265, 12 66 (Me . 1993); People v. Arterberry, 429 N.W .2d 574, 575 (Mich. 1988);
State v. Varnado, 582 N.W .2d 886, 8 92 (Min n. 1998) ; State v. Bauman , 586 N.W.2d 416, 420
(Minn. A pp. 1998 ); Ellis v. State , 573 So .2d 724, 7 26 (Mis s. 1990 ); State v. Meadors , 580 P.2d 903,
905 (M ont. 1978 ); State v. Brooks, 446 S.E .2d 579, 5 87 (N.C . 1994); State v. Tw ohig , 469 N.W.2d
344, 354 (Neb. 19 99); New Hampshire v. DeGrenier, 571 A.2d 814, 816 (N.H. 19 86); State v. Pena,
779 P.2 d 538, 54 4 (N.M . 1989); State v. Jones, 678 N.E .2d 285, 2 91 (Oh io. App. 19 96); State v.
Elk , 439 P.2d 1011 (O r. 1968); State v. Green, 676 P.2d 938, 940 (Or. Ap p. 1984) ; Com mon wealth
v. Trenge, 451 A.2d 701, 710 n.8 (Pa. S uper 19 82); State v. Mo ultrie , 451 S.E.2d 34, 37 (S.C. App.
1994); State v. Nguyen, 563 N.W .2d 120, 1 25 n.6 (S .D. 1997 ); W illiams v. Sta te, 726 S.W.2d 99,
101 (T ex. Crim . App. 198 6); State v. Spurgeon, 904 P.2d 220, 227 (Utah A pp. 1995 ); Parker v.
Com mon wealth , 496 S.E .2d 47, 52 (Va. 199 8); State v. McKenna, 958 P.2d 1017, 1021 (Wash.
App. 19 98); State v. Swanson, 475 N.W .2d 148, 1 54 (W is. 1991); United States v. Bowden, 121
F.3d 71 0 (6th Cir. 1 997); United States v. Miller, 925 F.2 d 695 (4 th Cir. 199 1).

                                                   -10-
Crutcher’s motorcycle were necessary or relevant to establish probable cause to

arrest for those two offenses. Clearly, therefore, the officers had probable cause

to arrest Crutcher at the scene of the accident. Moreover, the record establishes

that Crutcher was released that same evening from the hospital to the custody of

the Drug Task Force and remained in police custody until the next day when he

was returned to the hospital.9



        Though there is no bright-line rule, I would conclude that the search and

arrest in this case were part of one and the same transacton because the delay

between the two was caused solely by the defendant’s need for medical

treatment. Accordingly, even assuming Crutcher was not arrested at the scene,

as the majority concludes, I would hold the search valid as incident to a lawful

arrest under the reasoning of Rawlings.10




                                           CONCLUSION

        Because I am of the opinion that the warrantless search of the defendant’s

motorcycle was valid as a search incident to a lawful arrest, I respectfully dissent

from the majority decision. I would reverse the decisions of the lower courts which

ordered suppression of the evidence and remand this cause to the trial court for

further proceedings.


        9
         The re cord ref lects that on the even ing of the a ccident C rutcher’s x-rays we re mis read.
The error was discovered the next day, and the hospital called police and asked that Crutcher be
returned to the hospital for treatment of a fractured vertebrae.

        10
           I disagree with the majority’s decision to overrule State v. Moore, 949 S.W.2d 704, 706
(Tenn. Crim. App. 1997), a decision in which the intermediate appellate court upheld a search
under c ircum stance s sim ilar to those p resent in th is case.

                                                  -11-
       I am authorized to state that Justice Holder concurs in this Dissenting

Opinion.




                                         ______________________________
                                         FRANK F. DROWOTA III,
                                         JUSTICE




Concur:

Holder, J.




                                        -12-
