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