State of Tennessee v. Nolan Excell Pippen ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 27, 2015
STATE OF TENNESSEE v. NOLAN EXCELL PIPPEN
Appeal from the Circuit Court for Marshall County
No. 14CR12 Forest A. Durard, Jr., Judge
No. M2015-00828-CCA-R3-CD – Filed January 28, 2016
Following a jury trial, the Defendant, Nolan Excell Pippen, was convicted of public
intoxication, a Class C misdemeanor; and simple possession of marijuana, third or
subsequent offense, a Class E felony. See Tenn. Code Ann. §§ 39-17-310, -418. The
trial court imposed a total effective sentence of two years‟ incarceration. On appeal, the
Defendant contends (1) that the evidence was insufficient to support his conviction for
public intoxication; and (2) that the trial court erred in denying his motion to suppress the
marijuana found in his pocket during a search incident to his arrest for public
intoxication.1 Following our review, we conclude that the evidence was insufficient to
sustain the Defendant‟s conviction for public intoxication and that the trial court erred in
denying the Defendant‟s suppression motion.2 Accordingly, we reverse the judgments of
the trial court and dismiss the charges against the Defendant.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed;
Case Dismissed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER, J., joined. JOHN EVERETT WILLIAMS, J., filed a separate opinion
concurring in part and dissenting in part.
Michael Auffinger, Smithville, Tennessee, for the appellant, Nolan Excell Pippen.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Robert James Carter, District Attorney General; and Weakley E. Barnard, Assistant
District Attorney General, for the appellee, State of Tennessee.
1
For the purpose of clarity, the issues have been reordered and renumbered from how they appear in the
Defendant‟s appellate brief.
2
In his brief, the Defendant also argued that the trial court erred in setting the length of his sentence for
the simple possession offense. However, having reversed the Defendant‟s convictions, we need not
address the sentencing issue.
OPINION
FACTUAL BACKGROUND
Officer Charles Brannon of the Lewisburg Police Department (LPD) testified at a
pretrial suppression hearing. Officer Brannon testified that at approximately 8:04 p.m. on
December 12, 2013, he was dispatched to the Martin Street Apartments on a report “that
there was fighting in the parking lot and possibly intoxicated individuals.” When he
arrived at the apartment complex, another LPD officer, Ben Fender, was in the parking
lot and was speaking to the Defendant. Officer Brannon testified that he approached the
two men and that the Defendant appeared intoxicated. Officer Brannon explained that he
could smell “an alcoholic beverage on [the Defendant‟s] breath” and that the Defendant
“was unsteady on his feet.”
Officer Brannon testified that the Defendant had stated that he had been involved
in “an altercation” with two other people, Michael Crowder and Shelly Weir. According
to Officer Brannon, the Defendant stated that the incident started in their apartment and
spilled out into the parking lot. Officer Brannon testified that he believed Ms. Weir had
fallen down during the altercation but admitted that he was “not exactly clear [on] the
whole story.” The Defendant then pointed out that Mr. Crowder and Ms. Weir were on
the other side of the parking lot. In addition to Mr. Crowder and Ms. Weir, Officer
Brannon recalled that the Defendant‟s “wife had arrived on the scene in a car” and that
there were “two individuals over on the cross way.”
Based on this, Officer Brannon concluded that the Defendant was “a nuisance to
others” and “a danger to himself and others.” Officer Brannon arrested the Defendant for
public intoxication after his sergeant arrived “and investigated what [they] needed to do
for the case.” Officer Brannon testified that he “advised [the Defendant that he] was
going to do a pat down of his body for weapons.” Officer Brannon searched the
Defendant and felt something hard in the left back pocket of the Defendant‟s jeans, which
Officer Brannon “thought at that time was a knife.” Officer Brannon asked the
Defendant what was in the pocket, and the Defendant told him it was a cell phone and “a
sandwich bag.” Officer Brannon testified that he pulled a cellular phone and “a bag that
had [a] green leafy substance . . . [he] believed to be marijuana” out of the Defendant‟s
pocket.
The trial court issued a written order denying the Defendant‟s suppression motion.
The trial court concluded that the warrantless search of the Defendant was a valid search
incident to arrest. The trial court found that there was probable cause that the Defendant
had committed the offense of public intoxication by being a danger to himself or others.
Specifically, the trial court found that this was true in light of the fact that the police had
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received a call “regarding a fight, coupled with the [fact that the] warring parties [were]
still in close proximity to each other.”
At trial, Officer Fender testified that he was the first officer to arrive at the
apartment complex. Officer Fender recalled that he had been dispatched there on a call
about “a lady possibly laying [sic] on the ground” and “some possible public
intoxication.” Officer Fender testified that the Defendant was in the parking lot when he
arrived. According to Officer Fender, the Defendant smelled of alcohol and was
“unsteady on his feet.” Officer Fender explained that the Defendant “was staggering a
little bit” and “making several steps trying to keep his balance.”
Officer Fender testified that the Defendant stated that he had been “involved in an
altercation with another subject” and then pointed out Mr. Crowder and Ms. Weir on the
other side of the parking lot. Officer Fender admitted that he did not see Mr. Crowder
and Ms. Weir until after the Defendant pointed them out to him. Officer Fender testified
that the Defendant “seemed to be upset” and admitted that “at that time, [he] believed
[the Defendant] was the complainant that called and was the one who was complaining
about the incident.”
Officer Fender testified that he left the Defendant with Officer Brannon and went
across the parking lot to speak to Mr. Crowder and Ms. Weir. Officer Fender recalled
that Mr. Crowder and Ms. Weir could not speak or stand up, that they smelled of alcohol,
and that they “were hugging, kissing, [and] falling.” Officer Fender arrested them for
public intoxication. Officer Fender recalled that he put one of them in his patrol car and
the other in the patrol car of a third officer who had arrived after Officer Brannon.
Officer Fender testified that before he placed Mr. Crowder in the patrol car, he searched
Mr. Crowder and discovered a pack of cigarettes that contained “a small bag” of
marijuana.
Officer Fender testified that besides the officers, the Defendant, Mr. Crowder, and
Ms. Weir, there was no one else in the parking lot except for “a lady in a white car” who
pulled up as he was “starting to leave.” Officer Fender admitted that there was no
evidence of a fight in the parking lot, that there was no apparent damage to any property,
and that “[e]verything appeared to be okay” when he arrived. Officer Fender further
admitted that he “was unable to determine exactly what happened that night” due to “the
level of intoxication of” Mr. Crowder and Ms. Weir.
Officer Brannon testified at trial consistently with his testimony from the pretrial
suppression hearing. In addition, Officer Brannon testified that when he arrived at the
parking lot, he did not see a woman lying on the ground but that he saw “some people off
in the distance at the other end” of the parking lot, which he later learned were Mr.
Crowder and Ms. Weir. Officer Brannon estimated that Mr. Crowder and Ms. Weir were
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approximately fifty to one hundred yards away from the Defendant. Officer Brannon
also recalled that the Defendant‟s girlfriend was in a car “parked near where [the
Defendant] was at” when he arrived.
Officer Brannon testified that the Defendant admitted that “he had consumed some
alcohol” earlier that night. Officer Brannon testified again about the Defendant stating
that “he was involved in an altercation with other individuals that were in the parking
lot.” Officer Brannon further testified that he believed the altercation “was verbal” and
that he did not know if it ever became physical. Officer Brannon testified that he “later”
learned that Ms. Weir had fallen to the ground trying to separate Mr. Crowder and the
Defendant. However, Officer Brannon admitted that he did not “personally witness any
sort of altercation.”
Officer Brannon testified that he felt the Defendant was a danger to himself, to
others, and to “the property there.” Officer Brannon further testified that he believed the
Defendant was an annoyance to others and that he knew that “before [he] even got there”
because there had been a complaint “stating that something was happening in the parking
lot.” Officer Brannon also cited the fact that he saw two people approximately fifteen to
twenty feet away “looking” through an open doorway “in the direction” of the Defendant
and the officers as evidence that the Defendant was being an annoyance to others.
Subsequent forensic testing by the Tennessee Bureau of Investigation revealed that
the green leafy substance found in the plastic bag taken from the Defendant‟s pocket was
.09 grams of marijuana.
Debra Burns testified that she had “been common-law married” to the Defendant
for over twenty-five years.3 Ms. Burns testified that on December 12, 2013, she and a
friend had just left an Alcoholics Anonymous meeting when they drove by the Martin
Street Apartments and saw what they believed was a person lain out in the parking lot.
Ms. Burns claimed that she drove closer to investigate and found Ms. Weir
“unresponsive” with her head lying on an urn containing “the ashes of . . . [Mr.]
Crowder‟s mother.”
Ms. Burns testified that she called the Defendant, whose apartment was nearby,
and that he helped Ms. Weir to “her father‟s apartment . . . on the other side of the
driveway.” Ms. Burns claimed that after he helped Ms. Weir, the Defendant came back
and talked to her and her friend “for a few minutes.” Ms. Burns testified that she did not
see “any altercation that night between anybody,” that the Defendant “appeared fine,”
and that he did not seem intoxicated to her. Ms. Burns further testified that the Defendant
3
It is well established that marriage in Tennessee is controlled by statute and that common-law marriages
are not recognized in this state. See Martin v. Coleman, 19 S.W.3d 757, 760 (Tenn. 2000).
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was walking back to his apartment when the police pulled into the parking lot. Ms. Burns
admitted that she did not speak to the police that night and that she “bump[ed]” her car
into a pole as she was leaving the parking lot.
After Ms. Burns‟s testimony, the trial court questioned the Defendant about his
decision to testify at trial.4 The Defendant then testified for the jury, explaining that
several days prior to December 12, 2013, he was in his apartment reading the Bible when
Mr. Crowder came to his door. The Defendant claimed that Mr. Crowder had stated that
Ms. Weir had “kicked him out” and that he had nowhere to stay. The Defendant testified
that he agreed to let Mr. Crowder stay at his apartment for a few days.
The Defendant claimed that on December 12, 2013, he came home to his
apartment to find Mr. Crowder “there drinking.” The Defendant further claimed that he
then went to the bathroom, and when he returned, Mr. Crowder had “drugs on the table.”
The Defendant testified that he started “kind of bum-rushing” Mr. Crowder and “told him
to get his s--t and get out.” The Defendant recalled seeing Mr. Crowder place the drugs
“into a cigarette pack” as he was leaving. According to the Defendant, after Mr. Crowder
left the Defendant‟s apartment, Ms. Weir helped him “move his stuff down to [Ms.
Weir‟s] daddy‟s house.”
The Defendant claimed that, later that night, he was “nice and warm” in his
apartment “enjoying a beer” when he received a phone call from Ms. Burns about a
woman lying “out in the yard.” According to the Defendant, Ms. Burns told him that the
woman was “two feet from [his] door,” so he went outside to check on her. The
Defendant testified that he found Ms. Weir lying outside. The Defendant opined that Ms.
Weir “was knocked out pretty good” because she had fallen into a hole and “hit her head
on [an] urn” containing Mr. Crowder‟s mother‟s ashes. The Defendant explained that it
was not unusual for Ms. Weir to being carrying the urn that night because Mr. Crowder
carried it “around with him . . . . [w]herever he [went]” so he could take “his mother with
him.”
The Defendant claimed that he carried Ms. Weir “to her daddy‟s house” and left
“her down there.” The Defendant testified that he then spoke to Ms. Burns because she
“came over . . . to give [him] . . . a Christmas card.” The Defendant denied that there was
any sort of altercation and opined that the police were only “called because [Ms. Burns]
had bumped into a little pole.” The Defendant denied being intoxicated and denied
4
It appears that the trial court was conducting a hearing pursuant to Momon v. State, 18 S.W.3d 152
(Tenn. 1999), which outlined a prophylactic procedure designed to insure that a defendant‟s waiver of his
right to testify is voluntary, knowing, and intelligent. See Mobley v. State, 397 S.W.3d 70, 90-91 (Tenn.
2013). However, said procedure was not required prior to the Defendant‟s testimony as our supreme
court has “respectfully decline[d] to extend the reach of the prophylactic procedure in Momon to
instances in which a criminal defendant elects to testify.” Id. at 90.
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telling the police officers that there had been an altercation. The Defendant claimed that
he told the officers everything that he had testified to at trial about Mr. Crowder and Ms.
Weir.
With respect to the marijuana, the Defendant claimed that as he was leaving his
apartment, he saw an empty bag left by Mr. Crowder on the floor. The Defendant
insisted that he did not realize there was marijuana in the bag and that he thought it was
empty. The Defendant claimed that he believed the bag was trash, so he picked it up and
put it in his back pocket because he was going to throw it away in the dumpster while he
was outside. The Defendant further claimed that he told Officer Brannon that the bag
was trash and not his.
Based upon the foregoing, the jury convicted the Defendant of public intoxication
on the specific grounds that the Defendant had “unreasonably annoy[ed] people in the
vicinity” and simple possession of marijuana. Thereafter, the State presented evidence
that the Defendant had three prior convictions for simple possession. The jury then
convicted the Defendant of simple possession of marijuana, third or subsequent offense.
At the sentencing hearing, the trial court sentenced the Defendant to thirty days for the
public intoxication conviction and two years for the felony simple possession conviction.
The trial court ordered the sentences to be served concurrently for a total effective
sentence of two years‟ incarceration. This timely appeal followed.
ANALYSIS
I. Sufficiency of the Evidence
The Defendant contends that the evidence was insufficient to support his
conviction for public intoxication. The Defendant argues that the State failed to prove
that he was an unreasonable annoyance to people in the vicinity. The Defendant further
argues that “the record contains zero statements or testimony that would establish the fact
that” anyone was annoyed by his behavior that night. The State responds that the
evidence was sufficient to sustain the Defendant‟s conviction because he admitted to
being in an altercation with Mr. Crowder and Ms. Weir along with “the fact that two
persons called [the] police about [a] disturbance” and that there was a “collection of
onlookers at the complex.”
An appellate court‟s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
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evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury‟s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State‟s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.
The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme
court has held that circumstantial evidence is as probative as direct evidence. State v.
Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the supreme court rejected
the previous standard which “required the State to prove facts and circumstances so
strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v. Crawford,
470 S.W.2d 610, 612 (Tenn. 1971)) (internal quotation marks omitted).
Instead, “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason
for this is because with both direct and circumstantial evidence, “a jury is asked to weigh
the chances that the evidence correctly points to guilt against the possibility of inaccuracy
or ambiguous inference.” Id. at 380 (quoting Holland v. United States, 348 U.S. 121, 140
(1954)). To that end, the duty of this court “on appeal of a conviction is not to
contemplate all plausible inferences in the [d]efendant‟s favor, but to draw all reasonable
inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67
(Tenn. 2011).
Public intoxication is committed when a person “appears in a public place under
the influence of a controlled substance, controlled substance analogue or any other
intoxicating substance to the degree that: (1) The offender may be endangered; (2) There
is endangerment to other persons or property; or (3) The offender unreasonably annoys
people in the vicinity.” Tenn. Code Ann. § 39-17-310(a). Here, the jury found the
Defendant guilty under subsection (a)(3), that he was intoxicated to the degree that he
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“unreasonably annoy[ed] people in the vicinity.” The Defendant does not dispute the
jury‟s finding that he was intoxicated in a public place.
In order to sustain a conviction for public intoxication under subsection (a)(3),
“[t]he statute requires that the defendant, in fact, „unreasonably annoy[] people in the
vicinity,‟ not that his conduct could have annoyed others.” State v. Wilson, 990 S.W.2d
726, 729 (Tenn. Crim. App. 1998) (brackets in original) (emphasis added). To that end, a
defendant “arguing loudly outside his residence after midnight” could not be convicted of
public intoxication under subsection (a)(3) when there was “no proof that he actually
annoyed anyone else in the vicinity.” Id. “That someone in the area could have heard the
defendant does not establish that he unreasonably annoyed others.” Id.; see also United
States v. Ernest Reagan, No. 3:07-CR-98, 2007 WL 4208821, at *15 (E.D. Tenn. Nov.
26, 2007) (citing Wilson and holding that officer‟s belief that a vehicle‟s “loud stereo was
annoying people” and that a passenger in the vehicle was annoyed “by [a] potential
domestic dispute [the officer] believed he had heard” did not constitute a violation of
subsection (a)(3) because there was no evidence the defendant “actually annoyed people
in the vicinity”).
Here, the Defendant was found alone in the parking lot of his apartment complex.
Mr. Crowder and Ms. Weir were approximately fifty to one hundred yards away from the
Defendant, and Officer Fender testified that he did not see them until the Defendant
pointed them out to him. Officer Fender also testified that when he arrived at the parking
lot, there was no evidence of a physical altercation or damage to any property and that
“[e]verything appeared to be okay.” The Defendant allegedly told the responding
officers that he had been involved in an altercation with Mr. Crowder and Ms. Weir, but
neither Officer Fender nor Officer Brannon witnessed “any sort of altercation.”
Furthermore, Mr. Crowder and Ms. Weir were too intoxicated to provide the officers with
an explanation of what had occurred, and Officer Fender admitted that he “was unable to
determine exactly what happened that night.”
The State argues that “the fact that two persons called [the] police about [a]
disturbance” was sufficient to satisfy subsection (a)(3). However, there was no evidence
to establish who had called the police, and Officer Fender and Officer Brannon‟s
testimony conflicted as to exactly what the complaints were about. In fact, Officer
Fender testified that he initially believed that the Defendant “was the complainant that
called and was the one who was complaining about the incident” because the Defendant
“seemed to be upset” about the alleged altercation. The Defendant claimed the police
had been called because Ms. Burns “had bumped into a little pole” while backing out of
the parking lot. None of this amounts to evidence that the Defendant was intoxicated to a
degree that his behavior unreasonably annoyed people in his vicinity.
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Likewise, the fact that there was a “collection of onlookers at the complex” was
not sufficient to justify a conviction for public intoxication under subsection (a)(3).
There was no testimony presented at trial from any of the alleged “onlookers” or
evidence to establish that the Defendant‟s behavior had unreasonably annoyed them. The
fact that “onlookers” gathered during the arrest of the Defendant likely had more to do
with the fact that the LPD responded to a call about “some possible public intoxication”
in the parking lot of an apartment complex with, at a minimum, four officers and at least
three patrol cars rather than it did with the behavior of the Defendant. Accordingly, we
conclude that the State failed to prove that the Defendant, in fact, unreasonably annoyed
people in his vicinity. Therefore, the Defendant‟s conviction for public intoxication is
reversed and dismissed.
II. Motion to Suppress
The Defendant contends that the trial court erred in denying his motion to suppress
the marijuana found in his pocket during a search incident to his arrest for public
intoxication. In his brief, the Defendant couches this argument as a challenge to the
sufficiency of the evidence. However, the Defendant argues that the arresting officers
lacked probable cause to arrest him for public intoxication; therefore, the warrantless
search of the Defendant was not justified as a search incident to arrest, and the marijuana
seized should have been suppressed. The State responds that the officers had probable
cause to suspect that the Defendant had committed the offense of public intoxication.
On appellate review of suppression issues, the prevailing party “is entitled to the
strongest legitimate view of the evidence . . . as well as all reasonable and legitimate
inferences that may be drawn from that evidence.” State v. Talley, 307 S.W.3d 723, 729
(Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Questions about
“the assessment of witness credibility, the weight and value of evidence, and the
resolution of evidentiary conflicts are entrusted to the trial court.” State v. Meeks, 262
S.W.3d 710, 722 (Tenn. 2008). When the trial court “makes findings of fact in the court
of ruling upon a motion to suppress, those findings are binding on appeal unless the
evidence in the record preponderates against them.” Id. Additionally, a trial court‟s
conclusions of law along with its application of the law to the facts are reviewed de novo
without any presumption of correctness. Id.
Both the federal and state constitutions offer protection from unreasonable
searches and seizures with the general rule being “that a warrantless search or seizure is
presumed unreasonable and any evidence discovered subject to suppression.” Talley,
307 S.W.3d at 729 (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7). As has often
been repeated, “the most basic constitutional rule in this area is that „searches conducted
outside the judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment – subject to only a few specifically
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established and well delineated exceptions.‟” Coolidge v. New Hampshire, 403 U.S. 443,
454-55 (1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see also State
v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007).
Such exceptions to the warrant requirement include, “searches incident to arrest,
plain view, exigent circumstances, and others, such as the consent to search.” Talley, 307
S.W.3d at 729. The constitutional protections outlined above “are designed to safeguard
the privacy and security of individuals against arbitrary invasions of government
officials.” Id. (quoting State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998)) (internal
quotation marks omitted). Therefore, “a trial court necessarily indulges the presumption
that a warrantless search or seizure is unreasonable, and the burden is on the State to
demonstrate that one of the exceptions to the warrant requirement applied at the time of
the search or seizure. State v. Bobby Killion, No. E2008-01350-CCA-R3-CD, 2009 WL
1748959, at *14 (Tenn. Crim. App. June 22, 2009).
To justify a warrantless search incident to an arrest, “four conditions must be
met:”
(1) the arresting officer must have probable cause to believe that the
defendant had engaged or was engaging in illegal activity; (2) the probable
cause must attach to an offense for which a full custodial arrest is permitted
– i.e., there must be statutory grounds for a warrantless arrest; (3) the arrest
must be consummated either prior to or contemporaneously with the search;
and (4) the search must be incident to, not the cause of, the arrest.
State v. Richards, 286 S.W.3d 873, 878 (Tenn. 2009) (internal citations omitted). “[A]
search incident to arrest is supported by probable cause only if the facts, circumstances,
and reliable information known to the officers will warrant a prudent person‟s belief that
the suspect has committed an offense.” Id. at 879.
The trial court denied the Defendant‟s suppression motion on the grounds that
there was probable cause that the Defendant was intoxicated to an extent that he was a
danger to himself or others. The trial court based this conclusion on its finding of fact
that the police had received a call “regarding a fight, coupled with the [fact that the]
warring parties [were] still in close proximity to each other.” However, the record
preponderates against that finding.
Officer Fender testified that he was dispatched to the apartment complex regarding
“a lady possibly laying [sic] on the ground” and “some possible public intoxication.”
Officer Brannon estimated that Mr. Crowder and Ms. Weir were fifty to one hundred
yards away from the Defendant on the other side of the parking lot, and Officer Fender
testified that he did not even see Mr. Crowder and Ms. Weir until the Defendant pointed
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them out to him. Furthermore, Officer Fender testified that there was no evidence of a
fight in the parking lot and that “[e]verything appeared to be okay” when he arrived.
The Defendant, while exhibiting the classics signs of intoxication, was in the
parking lot of his residence. There was no proof that the Defendant was unable to walk
or stand, or that he was disoriented or incoherent. As such, the facts, circumstances, and
reliable information known to the officers did not warrant a prudent person‟s belief that
the Defendant was intoxicated to the extent that he was a danger to himself or others. Cf.
State v. Reynaldo Quintanilla, No. M2002-02440-CCA-R3-CD, 2003 WL 21145569, at
*7 (Tenn. Crim. App. May 16, 2003) (finding probable cause to arrest the defendant for
public intoxication because the defendant was intoxicated “to the degree that he was a
danger to himself” when the defendant was found “„staggering‟ along a state highway,”
“mumbling incoherently,” “had a head injury,” “admitted . . . that he had just been
involved in an automobile accident,” and “smelled of alcohol”).
In denying the Defendant‟s motion for new trial, the trial court cited the fact that
“this [incident] had drawn [the] attention” of “some other tenants in the apartment
complex” as evidence that the Defendant was “being unreasonably annoying to people in
the vicinity.” However, as discussed above, there was no proof presented at the
suppression hearing or at trial that the Defendant‟s actions, in fact, unreasonably annoyed
anyone in his vicinity. Given the facts discussed above regarding the sufficiency of the
convicting evidence for the public intoxication conviction, we also conclude that officers
lacked probable cause that the Defendant was intoxicated to the extent that he was an
unreasonable annoyance to people in the vicinity.
Accordingly, we conclude that the officers lacked probable cause to arrest the
Defendant for public intoxication and that the trial court erred in denying the Defendant‟s
motion to suppress. As the marijuana found in the Defendant‟s back pocket was the sole
evidence supporting his conviction for simple possession, third or subsequent offense, we
reverse and dismiss his conviction.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are reversed and dismissed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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