State v. Lunsford

• Decision Date: 15 August 1983
• Citation: 655 S.W.2d 921
• Parties: STATE of Tennessee, Plaintiff-Appellant, v. Terry Lee LUNSFORD, Defendant-Appellee. 655 S.W.2d 921
• Court: Tennessee Supreme Court

Page 921

655 S.W.2d 921

STATE of Tennessee, Plaintiff-Appellant, v. Terry Lee LUNSFORD, Defendant-Appellee.

655 S.W.2d 921

Supreme Court of Tennessee.

Aug. 15, 1983.

David M. Himmelreich, Asst. Atty. Gen., Nashville, for plaintiff-appellant; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.

Dale M. Quillen, Lucinda Smith Weaver, Nashville, for defendant-appellee.

OPINION

BROCK, Justice.

On April 9, 1980, at approximately 2:00 p.m., Officer Glen Taylor of the Hendersonville Police Department observed the appellee, Terry Lunsford, driving east on highway 31-E in a black Camaro. Earlier that day during his shift meeting Officer Taylor had been advised that appellee was a possible burglary suspect, and was told to be "on the lookout" for him.

When he first saw the appellee, Officer Taylor was sitting in his parked patrol unit; therefore, he radioed another unit in the vicinity "to keep a watch out" for appellee's vehicle. The order given at the shift meeting regarding the appellee was that if spotted, he was only to be observed.

Lieutenant Ray Holsberry had just arrived at the police department in a patrol unit when he heard Officer Taylor's radio transmission concerning appellee. He radioed back to Officer Taylor that there was an outstanding arrest warrant for Terry Lunsford in Davidson County.

After receiving this information Officer Taylor began casual pursuit of the appellee without siren or flashing lights. When he regained sight of appellee's vehicle Officer Taylor saw that appellee was in the left hand turn lane at New Shackle Island Road and 31-E waiting for the light to change. After making sure there was no oncoming traffic Officer Taylor swerved into the westbound lane of 31-E, turned on his lights and siren and stopped in front of appellee's car to prevent his turning onto New Shackle Island Road.

The appellee was then arrested, handcuffed, and put in the back seat of Officer Taylor's patrol car. Officer Taylor asked Lunsford if he would consent to a search of his car trunk. Lunsford asked if Officer Taylor had a search warrant and when Officer Taylor replied that he did not the appellee did not further respond.

Lieutenant Holsberry arrived shortly thereafter and instructed Officer Taylor to have appellee's car moved because it was blocking the intersection. It was towed a short distance to the Animal Inn Clinic parking lot where an inventory search was commenced. Several items found in the trunk, it was later discovered, were stolen property, and formed the bulk of the evidence to be used against the appellee.

The appellee filed a motion to suppress the evidence obtained as a result of the inventory search of his automobile, and after a hearing the motion was overruled. Appellee entered a plea of nolo contendere to the charge of concealing stolen property over the value of two hundred dollars ($200.00), and waived his right to a jury trial. The court found appellee guilty and fixed his punishment at not less than three nor more than three years in the penitentiary. The ruling on appellee's motion to suppress was specifically reserved for appeal. The Court of Criminal Appeals reversed the trial court's denial of the motion to suppress and we granted the state's application for permission to appeal.

In Drinkard v. State, 584 S.W.2d 650 (Tenn.1979), this Court set forth some guidelines regarding the impoundment of motor vehicles:

"[I]f the circumstances that bring the automobile to the attention of the police in the first place are such that the driver, even though arrested, is able to make his or her own arrangements for the custody of the vehicle, or if the vehicle can be parked and locked without obstructing traffic or endangering the public, the police should permit the action to be taken rather than impound the car against the will of the driver and then search it. Just cause to arrest the driver is not, alone, enough; there must also be reasonable cause to take his vehicle into custody." (Emphasis added.) 584 S.W.2d at 653.

The Florida Supreme Court has recently reached the same conclusion in Miller v. State, Fla., 403 So.2d 1307 (1981); Sanders v. State, Fla., 403 So.2d 973 (1981).

The appellee in the instant case was alone in his vehicle. He did not request to make other arrangements for its disposition, but the officer did not make known to the defendant his rights in this regard.

We have not indicated in any of our decisions that in order to avoid impoundment the arrested driver must have a companion passenger capable of assuming responsibility for the automobile contemporaneous with the arrest. In fact, there is language that indicates otherwise.

"[I]t would be a simple matter to alter the inventory form currently in use to provide for signed consent by the motorist to leave his car parked, locked and uninventoried, or its custody given to a friend, family member or personally chosen wrecker service. (Citations omitted.) The form could disclaim any police liability for subsequent loss or damage of property. Our courts have recognized the efficacy of signed consent forms in other contexts." Drinkard v. State, 584 S.W.2d at 654.

In the absence of probable cause to believe that the vehicle is carrying contraband, the overriding question is whether, under all the attendant circumstances, impoundment is reasonably necessary. Drinkard v. State, supra; Miller v. State, supra, at 1312-1313.

We so indicated in another recent case, State v. Roberge, Tenn., 642 S.W.2d 716 (1982). There, we affirmed a decision by the Court of Criminal Appeals in which it held that the impoundment of an out-of-state vehicle was reasonable under the circumstances.

"The vehicle was stopped by a patrolman who had been following it and had noticed it weaving across the eastbound lanes of an interstate highway in Henderson County. The trooper called for assistance. After stopping the vehicle he made arrangements with a local wrecker company to tow the vehicle off the interstate highway. It was raining heavily, and the arrest occurred after darkness had fallen. Both Sproul and Roberge were too intoxicated to be entrusted with driving the vehicle, and the juvenile female who was accompanying them did not have a driver's license. The officers consulted with her about driving the car, but she advised them that she was...