### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. DENNIS R. ENGLAND An Appeal from the Criminal Court for Sumner County

No. 9781 Jane Wheatcraft, Judge

No. M1997-00254-SC-R11-CO Decided May 30, 2000

FOR PUBLICATION

This is an appeal from the Criminal Court for Sumner County, which granted the defendant’s motion to suppress evidenc

e obtained from a

canine sweep of

his legally

detained motor vehicle. The trial court conclude d that a ca nine sweep is not a search under the Fourth Amendment to the United States Constitution but nonetheless held that the officer’s investigation should have ceased upon the defendant’s refusal to consent to a search. The Court of Criminal Appeals agreed with the State that, because a canine sweep i

s not a search und

er the Fourth Ame

ndment to the United States Constitution and the defendant’s vehicle was legally stopped, the defendant ’s consent was not necessary, and the officer needed neither probable cause nor reasonable sus picion to c onduct the canine sweep. The Court of Criminal Appea ls further c oncluded that the dog’s positive alert for drugs gave the officer probable cause to search the inside of the vehicle. Accordingly, the Court of Criminal Appeals reversed, and we granted the defendant’s application for permission to appeal this issue of first impression. We hold that a ca nine sweep aroun

d the perime

ter of a lega lly detained vehicle does not constitute

a search and thu

s need not be suppor

ted by probable c

ause or reasona

ble suspicion, and further, that under the facts of this case, the dog’s positive alert provide d probable cause to search the inside of the vehicle. Accordingly, we affirm the judgmen t of the Court of Criminal Appeals.
Tenn. R. App. P. 1 1 Appeal by Permissio n; Judgment of the C

ourt of Criminal App

eals Affirmed
A NDERSON , C. J., delivered the opinion of the Court, in which D ROWOTA , H OLDER , and B ARKER , JJ., joined. B IRCH , J., filed a dissenting opinion. R. Eddie Davidson of Nashville, Tennessee, for the appellant, Dennis R. England
Paul G. Summers, Attorney General and Reporter, Michael E. Moore, SolicitorGeneral, and Daryl J. Brand, Associate Solicitor General, Nashville, Tennessee (ON APPEAL), and La wrence Ra

y Whitley, District Attorney General, and Dee Gay, Assistant District Attorney (AT TRIAL), for the appellee, State of Tennessee 

### OPINION1 A canine sweep i s a procedure

by which an officer’s trained and certified drug detection dog sniffs a suspec

ted area for the

presence of na

rcotics.

2 Deputy Carpenter testified that a positive alert occurs when the canine scratches, bites, or barks in or aroun

d the area wher

e the canine sce

nts drugs. 

### -2- We granted this appe al to d etermine whether a canine sweep 1 around the perimeter of a le gally detained motor vehicle constitutes a search and, therefore, requires probable cause or reasonable suspicion.
The trial court

held an evidentiary hearing on the defendant’s motion to suppress evidence obtainedfrom a motor vehicle search after a police stop for a traffic viol ation. Although the trial court concluded that a canine sweep is not a search under the Fou rth Amendme

nt to the United States Constitution, it

nevertheless he

ld that the officer’s investigation, which included the canine sweep, should have ceased upon the defendant’srefusal to consent to a search. The defendant’s motion to suppress was granted.
The Court of

Criminal Appeals a

greed with

the trial court that the defendant’s vehicle was legally stopped and that the canine sweep did not constitute a search. The appellate court, however, didnot agree that the

defendant’s co

nsent was necess

ary, giv en that th e canine sweep w as not a search for purposes of the Fourth Amendment. The court held that the officer nee d ed neither probable cause nor reas

onable suspicion to

conduct the canine sweepand that the dog’s positive alert for drugs 2 gave the office

r probable cause to search the

inside of the vehicle. Accordingly, the Court of Criminal Appea

ls reversed the t

rial court’s gra

nt of the defenda

nt’s motion to suppre

ss.
We agree with the lower courts that a canine sweep around the perimeter of a legally detained vehicle does not constitute a search. We also agree with the Court of Criminal Appeals’ holding that such a canine sweep need not be supported by probable cause or reasonable suspicion, so long as the canine sweep does not unr easonably delay

an otherwise

legal traffic stop. Finally, based uponour de novo review of the record, we also agree with t he Court of Criminal Appeals that the canine’s positive alert gave the officer probable cause to search under the facts of this ca se. BACKGROUND Deputy Sheriff Jerry Ca

rpenter testifie

d at the suppres sion hearing that he was driving on routine patrol in Sumner County, Tennessee with “Coaster,” his drug detection dog, when he spotted the defendant, Den

nis R. England, drivi

ng his pick-up truc

k without a light to ill

uminate the rear license plate, in violation of Tenn. Code Ann. § 55-9-404 (1998).
The deputy activated his blue lights and stopped England’s truck. He left his patrol car , approached

the driver, and informed

him that he had been stopped for failing to illuminate his rear license plate. He obtained his driver’s license and returned to the patrol car to call the dispatcher and confirm that the license was valid and that there were no outstanding warrants.

### -3-

As Deputy Carpent

er awaited the r

eport, he noticed

England get out of his truck. England said he was concerned that

a loose wire accounted for the unilluminated light and the deputy shined his flashlight so that th

e wires could be s

e e n. As the deputy tal

ked to the defend

ant, he began to grow suspicious, based upon the responses to his questions. Deputy Carpenter first asked England if he had ever been arrested, and he replied that he had. The deputy asked him wh at his charge had been, and he responded that he had wrecked his truck and gotten arrested. The ne xt que stion was whether he had gotten arrested for a “DUI,” and England responded, “No, for d ope.” Wh en the deputy asked what kind of dope, England answered “m arijuana.” Deputy Carpenter testified that when he asked him if he had any marijuana in h i s truck, England became visibly nervous, both shaking and trembling, and stammered a reply of “no.”

Deputy Carpenter then asked England for permission to search his truck. England wanted to know what would happen if he refused to consent to the search, and the officer told him that he would be giv en a citation for the unilluminated light and would then be free to go, as soon as the dispatcher

reported back to confirm that the license was valid and that there were no outstanding warrants. England informed Deputy Carpenter that he did not want his truck searched.
At this stage, Deputy Thomas arrived o n the s cene. Deputy Carpenter instructed England to stand with Thomas about ten feet away from the pick-up truck. Deputy Carpenter then retrieved his dog from the patrol car and walked to the f ront f ender area of

England’s truck to

perform a canine sweep of the perimeter of the pick-up truck. Deputy Carpenter testified that when Coaster reached the area aroun

d th e driver’s side door, which England had left open, the dog began scratching at the door jamb, which signaled that illegal drugs were present inside the vehicle. Deputy Carpenter thenallowed the dog to enter the vehicle to investigate further, and the dog gave a positive alert on a blue denim jacket laying on the front seat. Deputy Carpenter testified he then removed the jacket from the vehicle, checked its pockets, and discovered a “large amount” of what appeared to be marijuana, along with weighing scales, several empty plastic b ags, several marijuana “roaches,” and a marijuana pipe. He placed England under arrest. The dispatcher did not report back that England

had a valid licens

e and no outstandin

g warrants until a

fter England’s a

rrest.

In the trial court, th

e defense filed

a motion to

suppress the evidence obtained from the canine sweep, arguing that

the sweep constitutes a search, that the defendant had refused to consent to the search, and further, that Deputy Carpenter lacked probable cause to search. The State responded that the canine sweep is l

ess intrusive than

a search and tha

t, under the fact

s of th is case, the canine sweep and the later search were reasonable.3 At oral argument b efore this Court, d

efense counsel

explained that, a

s a tria l tact ic, he chose not to question Deputy Carpenter regarding the length of the stop. The State indicated at oral argument, however, that based upon the deputy’s reports, the “entire episode lasted no more than ten minutes.” Deputy Carpenter’s reports are included in the record as exhibits and, as the State asserts, indicate that the time from the initial stop to the arrest took no more than ten minutes. 

### -4- The trial court found that England was lawfully stop ped, and that the “detention was not undulylong” but was for a reasonable length of time and purpose. 3 The trial court no netheless held that under the facts of this case, the officer’s investigation should have ended as soon as England refused consent to search his vehicle, stating that the “officer used his refusal as the basis on which to get the dog out of the car to conduct a ‘sniff.’ Once the defendant refused to have his car searched as th e result of custod

ial questioning, tha

t should have ende

d the matter.” Ac

cordingly, the tri

a l court granted the motion to suppress.
The Court of Criminal Ap peals affirmed t

he trial court’s c

onclusions that a cani ne sweep falls short of a Fourth Amendment search and that the length of the detention in this case was reasonable. The appellate court, however, disagreed with the trial court that the canine sweep was ren dere d uncons titu tional simply because it w as conducted af

ter England refu

sed consent to sea

rch his vehicle. The court reasoned that the officer needed neither

probable cause

nor reasonable suspicion for the canine sweep and that once the dog reacted with a positive alert during the sweep, there was probable cause

for a search. T

he Court of Criminal

Appeals stated tha

t: the automobile lighting violation provided the officer with the legal justification for the stop of the vehicle. Whil

e the vehicle was being legally detained, neither probable cause nor reasonable suspicion was needed for the officer to allow the drug dog to “sniff” or “sweep” the exterior o f the vehicle. When the dog indicated positive for the prese nce of illegal drugs in the vehicle, this action provided th e officer with probable cause to search the vehicle for the drugs. Accordingly, the Court of Crimina l Appeals rever

sed the trial c

ourt’s grant of the defendant’s motion to suppress.
We granted the defe

ndant’s applicat

ion for permission t

o appeal this issue

of first impressio

n.

ANALYSIS
Standard of Review This case involves a review of the trial court's findings of fact and law in granting the motion to suppress. In such cases, we will uphold the trial court’s findings re garding the “[q]uestions of credibility

of the witnesses, t

he weight and valu

e of the evidenc

e, and resolution o

f conflicts in the evidence,” unless the evidencepreponderates against these findings. State v. Odom , 928 S.W.2d 18,4 In stating that the officer needed reasonable suspicion in order to conduct the canine sweep, th e dissent implicitly argues that a canine sweep constitutes a search. We note that even the defendant now concedes that the canine sweep around the perimeter of his car did not constitute a search. Accordingly, no reasonable suspicion was required. 

### -5- 23 (Tenn. 1996). The application of the law to the facts found by the trial court,

however, is a question of

law which this Court reviews de novo. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997); Odom , 928 S.W.2d at 23. Initial Stop It is well-settled that an investigative stop of an automobile is constitutional so long as law enforcement

officials have a reasonable suspicion, supported by spec ific and articula

ble facts,that the occupants of the vehicle have committed, are committing, or are about to commit a criminal offense. United States v. Cortez , 449 U.S. 411, 417, 101 S. Ct. 690, 694, 66 L. Ed. 2d 621 (1981); Delaware v. Prouse , 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660; Yearga n , 958 S.W.2d at 631; Statev. Watkins , 827 S.W.2d 293, 294 (Tenn. 1992). In this case, both parties agree with the lower courts’ conclusion that theinitial stop of England’s pick-up truck was a legal stop, basedupon his violation of the license plate light law, Tenn. Code Ann. § 55-9-404. Accordingly, the lower courts correctly concluded that the initial stop of England’s vehicle was reasonable.

Reasonableness of Detention for Canine Sweep , We now turn to the que stion of whether the reasonable stop and detention of England’s vehicle for a traffic violation was rendered unreasonable by the officer’s use of the drug canine. In the trial court and the Court of Criminal Appeals, England argued that the canine sweep constitutes an unlaw ful search. He abandoned that position at oral argument before this Court and now concedes that a

canine sweep is n

ot a search. We

agree. As the tr

ial court observe

d:
The case of U.S. v. Place , 10 3 S. Ct. 26 37 (1983) stands for the proposition that there is no expectation of privacy in contraband and a dog sniff does not v

iolate any privac

y interest and is, therefore, not a search under

the Fourth Amendme

nt.
United States v. Place , 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983); United States v. Jacobsen , 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Though the Place case involved the use of canines in airports to investigate luggage, the rule has been applied in the context of canine sweeps around the perimeter of a legally detained

vehicle. Accord, e.g. , United States v. Holloman , 113 F.3d 192, 194 (11 th Cir. 1997) ; United States v. Jeffus , 22 F.3d 554, 557 (4 th Cir. 1994); United States v. Seals , 987 F.2d 1102, 1106 (5 th Cir. 1993); United States v. Rodriquez-Morales , 929 F.2d 780, 788 (1 st Cir. 1991); United States v. Stone , 866 F.2d 359, 363 (10 th Cir

. 1989). We conclude that the canine sweep did not constitute a search under the Fourth Amendment and therefore required neither probable cause nor reasonable suspicion. 4

### -6-

Although he concedes that the canine sweep is not a search, England maintains that the scope of the officer’s investigation exceeded the reason for

the initial stop and was thus unreasonable. He relies on a federal ca

se from the Sixth

Circuit, United States v. Mesa , 62 F.3d 159 (6 th Cir. 1995) and a Tennessee Court of Criminal Appeals case, State v. Morelock , 851 S.W.2d 838 (Tenn. Crim. App. 1992). In our view, however, both these cases are clearly distinguishable.
In Mesa , the officer stopped thedefendant’s vehicle, ordered her to the back of his patrol car, andinformed her tha

t she had been spe

eding. The offic

er checked Mes

a’s license and,

shortly thereafter, issued a warning citation. Instead of allowing Mesa to exit the squad car, however, the officer began questioning her extensively regarding her destination. The officer then conducted a canine sweep around the perimeter of Mesa’s vehicle, leaving her locked in the squad car. Although the cani ne f

ailed to alert,

officers nonetheless proceeded to search the inside of the vehicle, the underside of the vehicle, and the trunk, ultimately prying open a partition in the trunk, where they discovered evidence of illegal drugs. Id. at 161.
The Sixth Circuit Court of Appeals reversed the trial cour t’s denia l of Mesa’s motion to suppress the evide

nce obtained fro

m the search, re

asoning that:
Once the purposes of the initial traffic stop werecompleted , there is no doubt that the officer could not further detain th

e vehicle or its occupants unless something that occurred during the traffic stop gener atedthe necessary reasonable suspicion to justify a furt he r detention.
Id. at 162 (emphasis added). Accordingly, the court held in Mesa that any detent ion beyond that necessary to complete the tra ffic stop is

unreasonable unless supported by reasonable suspicion. In contrast, in the present case, the investigation for drugs did not de

lay England beyon

d the reasonable time necessary to run a license check to carry out the purpose of the traffic stop.
Morelock is also distinguishab

le. There, the of

ficer legall

y stopped the defendant for a speeding violation, issued a ppropriate cita

tions, and promptly

learned that thedefendant’s driver’s license was valid and that he had

no outstanding warrants. The Court of Criminal Appeals observed that , “[a]lthough thei

r business had ende

d,” the officer

nonetheless

proceeded to conduct a canine search. Id. at 839. The court characterized the case as “a routine traffic stop prolonged and extended to the point that the detention, reasonable in the beginning, became unreasonable toward the end.” Id. at 840. Thus, the search in Morelock became unreasonable because its duration exceeded that necessary to complete the investigation for the initial, legal traffic stop.
In the case before us, however, both the canine sweep and the search of the inside of the vehicle occurred before the dispatcher reported back. Our de novo review of the record indicates that the entire duration of

the stop did not exceed ten minutes. We thus conclude that the evidence does not preponderat

e against the trial c

ourt’s finding tha

t the length of the d

etention was rea

sonable andthat the initial reasonable traffic stop was not rendere d unreasonable b

y the investigative

use of the canine.

### -7- Probable Cause The Court of

Criminal Appeals concluded that theweight of authority supports the finding of probable cause based on a positive alert by a trained narcotics detection dog. It is true that some fed eral courts have so held, but with little analysis. See, e.g. , Romo v. Champion , 46 F.3d 1013 , 1020 (10 th Cir. 1995); Jeffus , 22 F.3d at 557 . To the extent, however, that these holdings represent a per se rule, we rejec

t it. We believe ins

tead that the find

ing of probable c

ause should

turn on the reliability of the canine and that the trial court shoul d ensure that th e canine is reliable by an appropriate finding of fact. See, e.g. , United States v. Fernandez , 772 F.2d 495, 497-98 & n.2 (9 th Cir. 1 985) (court unable to determine whether probable cause was established since no eviden c e existed as to canine’s reliability); Horton v. Goose Creek Indep. Sch. District , 690 F.2d 470, 482 (5 th Cir. 1982) (remanding to evaluate dog’s r eliability); United States v. Colon , 845 F. Supp. 923, 928 (D.P.R. 1994) (lack

of evidence in the record concerning narcotics dog re

liability preclude

s probable cause determination); State v. Barker , 850 P.2d 885, 893 -94 (Kan. 1993) (re manding to obtain testimony “from the handler of the dog as to the training, bac kground, charac

teristics, capab

ilities, andbehavior

of the dog”); see also United States v. $80,760.00 In U.S. Currency , 781 F. Supp. 462, 478 (N.D. Tex. 1991) (“[r]eliabi lity probl ems arise when the dog receives poor training, has an inconsistentrecord, searches for narcotics in conditions without

reliability

controls or receives cues from its handler”); United States v. $67,220.00 In U.S. Currency , 957 F.2d 280, 285 (6 th Cir. 1992) (evaluating dog alert evidenc e as “weak” be

cause “the government

did not obtain testimony from the dog’s handler or

anyone else fami

liar with the perf

ormance or reli

ability o f the dog”). As the United States District Court for the Northern District of Texas has stated:

Reliability

problems arise when the dog receives poor training, has an inconsistentrecord, searches for narcotics in conditions without reliability controls or receives cues from its handler. . . . $80,760.00 In U.S. Currency , 781 F. Supp. at 478 (footnote omitted). Accordingly, in our view, the tri al court, in making the reliability determination may consider such factors as: the canine’s training and the canine’s “track record,” with emphasis on the amount of false negatives and false positives the dog has furnished. The trial court should also consider the officer’s trainin g and experience with this particular canine. 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.2(f), 366-67 (

2d ed. 1987); see al so Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog , 85 Ky. L.J. 405, 432-33 (1997) (stating that the handler’s training should include “consistent pairing with one dog, warnings against handler cues, and training under difficult environments”).
In the case before us, Deputy Carpenter testified that he had worked on the Sumner County Drug Task Force for two years as a canine narcotics handler; that he hadworked on regular patrol fo r the last year; tha

t his dog’s name wa

s Coaster; and that

he had worked wit

h Coaster for tw o years. He described Coa ster as being thre

e years old; havin

g received eigh

t w eeks of i ntensified train ing in the detection of marijuana, cocaine, methamphetamine, and heroin; that he has been certified by the United States Police K-9 Association as a recognize/detector dog, andwas recertified

### -8-

in 1996; that he and Coa ster attend retr

aining sessions bimo

nthly at t he Metro Nashville Police Department

to assure that the dog meets their standard for the positive detection of narcotics; and that Coaster has given positive alerts in between fifty andone hund red situations where narcotics were actually found. We affirm the Court of Criminal Appeals’ conclusion that once the canine alerted positive for the presence of dr

ugs, Deputy Carpe

nter had probabl

e cause to conduct a search of the inside of the vehicle under the facts of this case. Our de novo r evie w of the record r eveals no eviden

ce to preponderate

against the trial cour t’s implicit finding that this canine and handler are trained and reliable. Coupled with the deputy’s testimony with regard to the defendant’s demeanor, the canine’s positive alert provid

ed probable cause . Accordingly, we affirm the Court o

f Criminal Appeals ’ judgment on the grounds stated.
CONCLUSION We are of the opinion that a canine sweep around the perimeter of a vehicle which has been legally detaineddoes not constitute a search, and thus , does not require probable cause

or reasonable suspicion so l ong as the duration of the canine swe

ep does not excee

d the time necessa

ry for the traffic stop. We further hold that there was probable cause to search the inside of the vehicle based on the canine’s positive alert and the reliability of the canine and handler under the facts of this

case. Accordingly, we affirm the Court of Criminal Appeals’ judgment holding that a canine sweep of a lawfully detained vehicle is not a search and that there was probable c aus e to search in this case. Costs of appeal are taxed against Defendant England for which execution shall issue if necessary.