State v. Walker

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE
FILED
February 14, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) FOR PUBLICATION
)
Appellee, ) FILED: February 14, 2000
)
v. ) MAURY COUNTY
)
AVERY WALKER, ) HON. JAMES L. WEATHERFORD, JUDGE
)
Appellant. ) NO. M1996-00046-SC-R11-CD

For Appellant: For Appellee:

JOHN S. COLLEY, III PAUL G. SUMMERS
Columbia, TN Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

ELIZABETH B. MARNEY
Assistant Attorney General
Nashville, TN
T. MICHAEL BOTTOMS
District Attorney General
J. LEE BAILEY, III
Assistant District Attorney
Columbia, TN

OPINION

JUDGMENT OF THE COURT OF CRIMINAL APPEALS IS REVERSED;
JUDGMENT OF THE TRIAL COURT IS REINSTATED. BIRCH, J.
 I. INTRODUCTION

The statute pertinent here provides that an officer who
observes the commission of certain misdemeanors must cite and

release the misdemeanant rather than effecting a custodial arrest.1
There are, however, exceptions to this statute. The exception
relevant here authorizes an officer to effect a custodial arrest of

a misdemeanant when that person “cannot or will not offer

satisfactory evidence of identification . . . .”2

We accepted review to clarify the “identification

exception” to our “cite and release” statute. To clarify this

exception, we must determine whether the police officer in the case

at bar was justified in concluding that the identification3

evidence offered by the misdemeanant was unsatisfactory under Tenn.

Code Ann. § 40-7-118(c)(3).

After carefully considering the entire record as well as
the purpose of the “cite and release” statute, we conclude that an
objective standard of reasonableness should be used to determine

whether evidence of identification offered to an officer by a

1
Tenn. Code Ann. § 40-7-118 (1997). The pertinent part of
this statute reads that “[a] peace officer who has arrested a
person for the commission of a misdemeanor committed in such peace
officer’s presence . . . shall issue a citation to such arrested
person to appear in court in lieu of the continued custody and
taking of the arrested person before a magistrate.” Tenn. Code
Ann. § 40-7-118(b)(1). For purposes of clarity in this opinion, we
use “custodial arrest” to refer to the act of taking the defendant
into custody, thereby avoiding the use of the term “arrest” as a
stand-alone term.
2
Tenn. Code Ann. § 40-7-118(c)(3)(Supp. 1999)(“No citation
shall be issued under the provisions of this section if . . . [t]he
person arrested cannot or will not offer satisfactory evidence of
identification, including the providing of a field-administered
fingerprint or thumbprint which a peace officer may require to be
affixed to any citation . . . .”).
3
Throughout the testimony, argument of counsel, and the
opinion of the Court of Criminal Appeals, the words “driver’s
license” and “identification” are used interchangeably. We will
attempt to be specific.

2
misdemeanant is satisfactory evidence of identification within the

meaning of the statute. Under this standard, we find that the

evidence of identification offered by Avery Walker, the defendant,
constituted satisfactory proof of identification and that the

officer should not have effected a custodial arrest. For the

reasons expressed herein, the custodial arrest and the search
incident to it violated the Fourth Amendment of the United States

Constitution and Article I, § 7 of the Tennessee Constitution.

Therefore, the evidence seized as a result of the search must be
suppressed. Accordingly, we reverse the judgment of the Court of

Criminal Appeals and reinstate the judgment of the trial court.

II. BACKGROUND

A. Facts

On March 29, 1994, Avery Walker drove his girlfriend’s

car to a convenience market to purchase a soft drink. The volume
of the car radio was noticeably high. Bill Gault, a police officer
for the City of Columbia, heard the radio as Walker pulled up and

parked. As Walker entered the market, Gault approached him. Gault
said “something” to Walker about the radio being too loud, but
Walker did not understand him. When Walker returned to his car,

Gault was standing beside it. Gault then began to interrogate
Walker.

Gault told Walker that he was in violation of a City of
Columbia noise ordinance and that a citation would be issued.4

Gault then asked Walker who owned the car. He also asked for

4
A “citation” is defined as “a written order issued by a peace
officer requiring a person accused of violating the law to appear
in a designated court or governmental office at a specified date
and time. Such order shall require the signature of the person to
whom it is issued. . . .” Tenn. Code Ann. § 40-7-118(a)(1) (1997).

3
Walker’s driver’s license and vehicle registration. Walker told

Gault that he did not have the vehicle registration and that the

car belonged to his girlfriend. Also, he stated that he had left
his wallet containing his driver’s license at his mother’s home,

about two blocks away.

Walker then gave Gault his name, date of birth, and

driver’s license number. Additionally, he offered to go home and

get his license. Walker also suggested that Gault follow him to
his mother’s house so that he could get his license. Neither of

these options were acceptable to Gault. Gault did, however, speak

with a police dispatcher about the information Walker had given

him. The dispatcher validated the information furnished by Walker

and informed Gault that the license bearing the number Walker had

given was a valid license.

Although the dispatcher had verified Walker’s

information, Gault decided to take him into custody for violating
the noise ordinance. Gault searched Walker. As a result of this
search, Gault found marijuana and a substance containing cocaine.

Gault testified that he would have given Walker a citation and
released him but Walker did not have his driver’s license or other
identification with him.

B. Procedural History

1. Suppression Hearing

Walker moved to suppress the evidence obtained as a

result of the search. He asserted that Gault should have issued

him a citation in lieu of custodial arrest, a procedure authorized

by Tenn. Code Ann. § 40–7-118(b)(1). Asserting that a custodial

arrest was not warranted, Walker insists that the search was

4
unconstitutional. Following an evidentiary hearing in which Gault

and Walker testified, the trial court granted the motion and

ordered the evidence suppressed. The order did not, however,
include essential findings as required by Tenn. R. Crim. P. 12(e).

On direct review, the Court of Criminal Appeals concluded
that Walker had failed to provide the officer with satisfactory

evidence of identification. Thus, the court held both the

custodial arrest and the subsequent search constitutional.

2. Contentions on Appeal

On appeal to this Court, Walker contends that the search

and seizure of evidence violated Tenn. Code Ann. § 40-7-118.

Therefore, Walker insists that his custodial arrest and the

subsequent search of his person were unconstitutional and the

evidence seized as a result of the search should be suppressed.

The basis of this contention lies in Walker’s assertion that he
did, in fact, offer Gault satisfactory evidence of identification
as required by Tenn. Code Ann. § 40-7-118.

On the other hand, the State urges that the evidence of
identification offered by Walker was not satisfactory because of

Walker’s inability to demonstrate that he was the same person to
whom Tennessee license number 65952203 belonged. Thus, the State
urges the legality of the custodial arrest and the

constitutionality of the subsequent search.

III. STANDARD OF REVIEW

This case terminated with the trial court’s order

suppressing evidence obtained when Walker was searched. Although

the order was entered without findings of fact, the facts are

5
uncontroverted.5 As such, we review only questions of law. These

questions are reviewed de novo. See State v. Crutcher, 989 S.W.2d

295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.
1997).

IV. DISCUSSION

A. The “Cite and Release” Statute; Tennessee Code Annotated
§ 40-7-118

An officer who observes an individual committing a public

offense or a breach of the peace may, without a warrant, arrest the

individual. Tenn. Code Ann. § 40-7-103(a)(1) (Supp. 1999). Under

Tenn. Code Ann. § 40-7-118(b)(1), however, when an officer6
observes the commission of certain misdemeanors, the officer is

required to cite and release the misdemeanant in lieu of effecting

a custodial arrest.7 Accordingly, the Tennessee “cite and release”

5
Gault testified that he had little personal recollection of
Walker and did not recall checking any information with the
dispatcher. The dispatcher’s testimony and the records from the
City of Columbia police dispatcher reflect that Gault did check the
license number and information Walker claims to have given.
Moreover, Walker testified that this information was verified. The
State offered no evidence to refute Walker’s testimony.
Additionally, we recognize that the trial court determined the
credibility of the witnesses, weighed the evidence, and concluded
that the State had failed to meet its burden of demonstrating that
the identification evidence offered by Walker was unsatisfactory.
This conclusion is entitled to great deference so long as it is
consistent with our conclusions based on applicable law. See
Crutcher, 989 S.W.2d at 299 (citation omitted). Additionally, the
trial court’s conclusions suggest that although the trial court
entered its order without findings of fact, the court fully
accredited Walker’s testimony.
6
Tennessee Code Annotated § 40-7-118 uses the term “peace
officer.” A peace officer is “an officer, employee or agent of
government who has a duty imposed by law to: (i) Maintain public
order; (ii) Make arrests for offenses, whether that duty extends to
all offenses or is limited to specific offenses; and (iii)
Investigate the commission or suspected commission of offenses[.]
. . . Peace officer also includes an officer, employee or agent of
government who has the duty or responsibility to enforce laws and
regulations pertaining to forests in this state.” Tenn. Code Ann.
§ 40-7-118(a)(3)(A) & (B) (1997). For the purpose of this opinion
the term “officer” is used synonymously with “peace officer.”
7
Under Tenn. Code Ann. § 40-7-118 there are two types of
arrests at issue. The first type of arrest is the brief seizure

6
statute creates a presumptive right to be cited and released for

the commission of a misdemeanor. See State v. Slatter, 423 N.E.2d

100, 104 (Ohio 1981) (considering an Ohio “cite and release”
statute virtually identical to our own, the Ohio court held that

the Ohio statute “create[s] a substantive right of freedom from

arrest for one accused of the commission of a minor misdemeanor
unless one of the statutory exemptions exists.”).

There are, however, eight exceptions to the “cite and
release” statute that require an officer to disregard the “cite and

release” procedure and effect a custodial arrest. See Tenn. Code

Ann. § 40-7-118(c) (1997). The exception here pertinent requires

the custodial arrest of a misdemeanant who “cannot or will not

offer satisfactory evidence of identification . . . .” Tenn. Code

Ann. § 40-7-118(c)(3) (1997). Thus, this Court is presented with

a difficult issue of first impression: What is the standard for

determining what constitutes “satisfactory evidence of

identification” under Tenn. Code Ann. § 40-7-118(c)(3)?

B. The Standard for Determining Satisfactory Evidence of
Identification in Tennessee

1. Case Law of Ohio

Although this Court is presented with an issue of first
impression, courts of other jurisdictions with similar statutes
have found it necessary to craft a standard by which to determine

what constitutes “satisfactory evidence of identification.”

and detention of an individual while the officer issues a citation.
See Tenn. Code Ann. § 40-7-118(b)(1) (1997); see also People v.
Bland, 884 P.2d 312, 316 n.6 (Colo. 1994); People v. Superior Court
of Los Angeles County, 496 P.2d 1205, 1215 (Cal. 1972). The second
type of arrest is described as “continued custody” of an already
arrested individual. Tenn. Code Ann. § 40-7-118(b)(1) (1997).
This continued custody of a person already arrested (subjected to
a brief seizure and detention) is a custodial arrest. See id.; see
also State v. Chearis, 995 S.W.2d 641, 643-44 (Tenn. Crim. App.
1999).

7
Although not as persuasive as an opinion from the Ohio Supreme

Court would have been, the standard enunciated by the Ohio Court of

Appeals offers compelling guidance.

In State v. Satterwhite, the Ohio Court of Appeals

considered the identification exception to Ohio’s “cite and
release” statute.8 704 N.E.2d 259 (Ohio Ct. App. 1997). In

Satterwhite, a police officer stopped the defendant for jaywalking.

Id. at 260. The defendant was asked if he had any identification,
and he answered “no.” Id. He was arrested, placed in a police

vehicle, and searched. Id. The defendant was then asked for his

name and social security number, both of which he gave. Id. The

officer verified the defendant’s name, social security number, and

physical description using a computer in the vehicle. Id. The

trial court found that the defendant had been denied an opportunity

to offer satisfactory evidence of his identity because the officer

had not attempted to ascertain his identity before placing him in

the vehicle. Id. The Court of Appeals agreed, reasoning that an
objective standard of reasonableness should be used when
determining what evidence of identification is satisfactory. Id.

at 261. As posited by the Satterwhite Court, “the inquiry should
be whether the police officer is objectively reasonable in
rejecting the computer information as satisfactory proof of

identity when the computer verifies the information that the
officer has been given.” Id.9

8
Ohio’s “cite and release” statute and identification
exception is substantially similar to our own and is found at Ohio
Rev. Code Ann. § 2935.26.
9
In evaluating a different statute with similar language, Ohio
courts have applied the same objective test. For example, in State
v. DiGiorgio the Ohio Court of Appeals considered what constituted
satisfactory evidence or proof under Ohio Rev. Code Ann. § 4507.35.
689 N.E.2d 1018 (Ohio Ct. App. 1996). The court reasoned that
“courts must apply a standard of objective reasonableness in
determining what type of proof is satisfactory.” Id. at 1020.

8
2. Adopting an Objective Test

Adopting the Satterwhite rationale, we hold that under
Tenn. Code Ann. § 40-7-118(c)(3), it is the State’s burden to

prove10 that it was objectively reasonable for the officer to reject
a misdemeanant’s proffered identification evidence. By objectively
reasonable, we mean that in rejecting the evidence, the officer

should have a “specific articulable reason to doubt that the cited

person has accurately identified himself [or herself] before taking
him [or her] into custody.” People v. Monroe, 16 Cal. Rptr. 2d

267, 286 (Cal. Ct. App. 1993) (Smith, J., dissenting).11

C. The Purpose of the Tennessee “Cite and Release” Statute

The objective standard adopted by this Court is supported

by the purpose of the “cite and release” statute and its

identification exception. When an officer observes the commission

of certain misdemeanors, the officer is required to issue a

citation in lieu of custodial arrest. Tenn. Code Ann. § 40-7-

118(b)(1) (1997). The misdemeanant must sign the citation,

10
It is the prosecution’s burden to prove that the rejection
of identification was objectively reasonable. See Tenn. Code Ann.
§ 40-7-118(j) (1997)(“Whenever an officer makes a physical arrest
for a misdemeanor and the officer determines that a citation cannot
be issued because of one (1) of the eight (8) reasons enumerated in
subsection (c), the officer shall note the reason for not issuing
a citation on the arrest ticket.”); see also Satterwhite, 704
N.E.2d at 260 (citing State v. Satterwhite, No. 14699, 1995 WL
29200, at *2 (Ohio Ct. App. Jan. 25, 1995) (“[T]he state has the
burden of demonstrating the existence of the statutory
exemption.”)).
11
But see Monroe, 16 Cal. Rptr. 2d 267 (where a majority of the
California Court of Appeals reasoned that satisfactory evidence
under Cal. Veh. Code § 40302 was either a driver’s license or the
functional equivalent (documentation bearing a photograph and
description of the individual, his or her signature, and current
mailing address) and if neither form of identification is presented
it is left to the discretion of the officer to determine if the
identification presented is satisfactory). Monroe was subsequently
criticized by the California Court of Appeals in People v. Nava.
The Nava court determined that oral verification of identification
could satisfy the satisfactory evidence requirement. 22 Cal. Rptr.
2d 600, 610-11 (Cal. Ct. App. 1993).

9
requiring him or her to appear in court on a specified day and

time. Tenn. Code Ann. § 40-7-118(a)(1) (1997). The result is that

individuals who have committed relatively minor offenses are
released, but only on the “promise” that they will appear in court.

This permits “allowing the use of jail space for dangerous

individuals and/or felons. . . .” Tenn. Code Ann. § 40-7-118(m)(3)
(1997).

In essence, Tennessee’s “cite and release” statute works
on an “honor system,” operating under the assumption that the

misdemeanant will act in good faith by furnishing accurate

identification so that an officer can be assured that the

misdemeanant is actually the person he or she claims to be. See

Tenn. Code Ann. § 40-7-118(c)(3) & (b)(1) (1997); see also Superior

Court of Los Angeles County, 496 P.2d at 1216; Monroe, 16 Cal.

Rptr. 2d at 284-85 (Smith, J., dissenting)(finding that

California’s “cite and release” statute works on an “honor

system”).12 The exception empowers an officer to effect a custodial
arrest only when the identity of a misdemeanant is in doubt, but
not solely because a misdemeanant is not carrying approved

“government papers.” See Satterwhite, 1995 WL 29200, at *1. To
this end, an officer’s discretion is limited. An officer may not
make unreasonable or arbitrary determinations as to what

constitutes satisfactory evidence of identification. See Monroe,16

Cal. Rptr. 2d at 286 (Smith, J., dissenting).

D. The State’s Contention: Reliable Corroboration of an
Individual’s Physical Identity

The State takes issue with the Court of Criminal

Appeals’s finding that a misdemeanant is required to provide some

12
California’s “cite and release” statute is similar in many
respects to our own “cite and release” statute and is found in
various subsections of Cal. Penal Code and Cal. Veh. Code § 835 and
at § 40302.

10
form of photographic evidence under Tenn. Code Ann. § 40-7-

118(c)(3) and insists that this Court adopt an objective standard.

However, the State contends that “when no tangible proof is
available, an individual should be required to establish his or her

identity by reasonably reliable corroboration of the individual’s

physical characteristics in addition to verbal information.”

Under the State’s contention, it is difficult to conceive

of a case where a misdemeanant could establish his or her identity
by corroboration of his or her physical characteristics without

some form of photographic proof. Essentially, therefore, the State

would require misdemeanants to present another form of photographic

evidence to meet the “satisfactory evidence” requirement. We

reject the notion that, in all cases, an officer’s rejection of

evidence of identification will be objectively reasonable if the

misdemeanant did not offer additional proof of physical

characteristics.

It is not unusual for one to forget to carry one’s
driver’s license or other document describing physical

characteristics. As the California Supreme Court noted:

[a common] explanation for a
motorist’s failure to have his [or
her] license with him [or her] is
the most obvious, i.e., that he [or
she] inadvertently left it in a
different suit of clothing . . .
Such occasional forgetfulness is a
fact of human nature, no doubt
reinforced by the pressures and
demands of modern life. Indeed, we
daresay that at one time or another
virtually every motorist has
suffered the minor embarrassment of
leaving his [or her] license at
home.

Superior Court of Los Angeles County, 496 P.2d at 1211-12. Because

it is common for individuals to forget their license or other

evidence of physical characteristics, “[o]ral evidence as an

11
alternative means of identification necessarily forms an integral

part of the honor system” in our “cite and release” statute.

Monroe, 16 Cal. Rptr. 2d at 285 (Smith, J., dissenting); see also

Nava, 22 Cal. Rptr. 2d at 610-11 (finding that verbal

identification can constitute satisfactory evidence of

identification under California’s “cite and release” provisions).

In this age of computers, officers have a variety of

reliable methods at their disposal by which to verify the identity
of a misdemeanant who cannot display a driver’s license or other

proof of his or her physical characteristics. Monroe, 16 Cal.

Rptr. 2d at 285 (Smith, J., dissenting). For example, a

misdemeanant may still be able to provide an officer with a full

name, address, date of birth, and, possibly, a driver’s license

number. An officer may relay this information to a dispatcher and,

in a matter of minutes, determine if the record on file matches the

description of the misdemeanant. See id.

If the information given by the misdemeanant does not
match the address, birth date, or driver’s license number, the

officer’s decision to reject such data as satisfactory evidence of
identification may indeed be objectively reasonable. Moreover, if
the information given does match the record, but there is some

other objective reason for questioning the accuracy of the
misdemeanant’s identification, an officer’s decision to reject the
evidence may also be deemed proper. Additionally, an officer may

test a misdemeanant on the information he or she gives concerning
residence, telephone number, social security number, and/or place

of employment. See id.

This is not to say, however, that photographic proof or

additional evidence of a misdemeanant’s physical characteristics

will never be necessary. In some cases corroboration of an

12
individual’s identity beyond oral representations may be necessary.

Nonetheless, an officer’s decision to reject a misdemeanant’s oral

representations is evaluated under an objective standard, and an
officer must make all reasonable efforts to verify a misdemeanant’s

identity. Accordingly, the determination of whether verbal

representations supply satisfactory evidence of identity must be
made on a case-by-case basis.

E. The “Cite and Release” Statute and the Fourth Amendment

A warrantless search is presumed unreasonable and thus
violates the Fourth Amendment to the United States Constitution and

Article I, Section 7 of the Tennessee Constitution. See Coolidge

v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032, 29 L.

Ed. 2d 564, 576 (1971); see also Yeargan, 958 S.W.2d at 629. An

exception to the warrant requirement is a search incident to a

lawful custodial arrest. When an officer places an individual

under lawful custodial arrest, an officer is permitted to make a

warrantless search incident to the custodial arrest. See United
States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38 L.
Ed. 2d 427, 440-41 (1973); see also Crutcher, 989 S.W.2d at 300.

If an individual is unlawfully placed under custodial arrest, a

subsequent search is also unlawful and evidence seized as a result
of the unlawful search is suppressed and not admissible in the
prosecution’s case in chief. See Wong Sun v. United States, 371

U.S. 471, 484-85, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 453-54
(1963); see also State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992);

Tenn. R. Crim. P. 41(f).

As discussed, an officer is to issue a citation in lieu

of custodial arrest unless the misdemeanant is unable to offer

satisfactory evidence of his or her identification, in which case

the officer must place the misdemeanant under full custodial

13
arrest. Tenn. Code Ann. § 40-7-118(b)(1) & (c)(3) (1997). An

officer makes a lawful custodial arrest, under Tenn. Code Ann. §

40-7-118(c)(3), when it is objectively reasonable to reject the
evidence offered as proof of identification. In such cases a

warrantless search incident to the custodial arrest is permitted.

If, however, an officer’s rejection of the evidence is objectively
unreasonable, the custodial arrest and subsequent search are

unlawful, and evidence gained as a result of the search must be

suppressed.

F. The Case at Bar

In the case at bar, the State has failed to show an

objective reason for Gault to reject the evidence offered by Walker

as proof of his identification. Though Walker did not have his

driver’s license with him, he gave Gault his name, driver’s license

number, and birth date. Gault verified this information with the

dispatcher. Gault also verified the information Walker gave about
the owner of the car and checked the car’s license plate number.
The State presented no evidence of an objective reason to doubt the

reliability of this information. Moreover, the trial court, which
is in the best position to consider the evidence concerning
Walker’s identity, concluded that Gault had no objective grounds

for questioning Walker’s identity. Therefore, under Tenn. Code
Ann. § 40-7-118(c)(3), Gault wrongly placed Walker under custodial
arrest. Because the custodial arrest was unlawful, the search

incident to the arrest was also unlawful, and the seized evidence
must be suppressed.

V. CONCLUSION

Today we adopt an objective standard for determining what

constitutes satisfactory evidence of identification under Tenn.

14
Code Ann. § 40-7-118(c)(3). Applying this objective standard to

the case at bar, we find that Gault’s rejection of the evidence

offered to him as proof of Walker’s identity was objectively
unreasonable. Therefore, both the custodial arrest of Walker and

the subsequent search were unconstitutional, and the evidence

seized must be suppressed. Accordingly, and for the aforementioned
reasons, the decision of the Court of Criminal Appeals is reversed,

and the judgment of the trial court is reinstated.

Costs of this appeal are taxed to the State of Tennessee.

______________________________
ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.
Drowota, Holder, Barker, JJ.

15