TN: SI that occurred without arrest was invalid

The fact an arrest with probable cause could have occurred for a search incident is not determinative—it is whether it did occur. State v. Ingram, 331 S.W.3d 746 (Tenn. 2011):

It is not sufficient that an arrest could have been made; the arrest must have been made roughly contemporaneously to the search in order for it to justify the search as incident to an arrest. In Crutcher, we “decline[d] to hold that a search may be upheld as a search incident to arrest merely because a lawful custodial arrest ‘could have’ been made,” 989 S.W.2d at 301 n.8, and emphasized that “we are not prepared to hold that the police may conduct a warrantless search merely because they have probable cause to arrest the suspect.” Id. at 302; see also Knowles, 525 U.S. at 115-16 (rejecting Iowa Supreme Court’s “reasoning that so long as the arresting officer had probable cause to make a custodial arrest, there need not in fact have been a custodial arrest”); Belote v. State, 411 Md. 104, 981 A.2d 1247, 1257 n.7 (Md. 2009) (rejecting state’s position “that law enforcement, in order to effect a custodial arrest, only needs probable cause and detention of the suspect”); People v. Evans, 43 N.Y.2d 160, 371 N.E.2d 528, 531, 400 N.Y.S.2d 810 (N.Y. 1977) (concluding that “[t]o adopt the proposition that the search was valid because there was probable cause to arrest puts the cart before the horse. An arrest is an essential requisite to a search incident”).

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In summary, we agree with the Court of Criminal Appeals’ conclusion that the officers did not take such action “that would indicate to a reasonable person that he or she is under arrest” as required by Crutcher. Id. at 302. Accordingly, we conclude that the trial court erred in denying the Defendant’s motion to suppress the fruits of the warrantless search of his person — the four $20 bills used by the CI to make the first controlled drug buy from Ms. Hampton. We also agree with the intermediate appellate court’s conclusion that although the State provided other evidence connecting the Defendant to the first controlled buy at Ms. Hampton’s house, the Defendant’s “possession of these twenty-dollar bills was particularly damning.” Ingram, 2009 Tenn. Crim. App. LEXIS 889, 2009 WL 3400694, at *9. Accordingly, we are not persuaded beyond a reasonable doubt that the admission of this evidence did not contribute to the jury’s decision-making in finding the Defendant guilty of the sale of .5 grams or more of cocaine and conspiracy to sell .5 grams or more of cocaine to the CI. See State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010); State v. Rodriguez, 254 S.W.3d 361, 371-72 (Tenn. 2008). Accordingly, the erroneous admission of this evidence was not harmless. See Tenn. R. App. P. 36(b). The Defendant’s convictions for the sale of .5 grams or more of cocaine and conspiracy to sell .5 grams or more of cocaine are reversed, and the case is remanded for a new trial on those charges.