# FILED
March 31, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9702-CR-00064 ) Appe llant, ) ) ) SUMNER COUN TY VS. ) ) HON. JANE WHEATCRAFT DENNIS R.ENGLAND, ) JUDGE ) Appellee. ) (State Appeal -Vehicle Sear ch)
ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SUMNER COU NTY
FOR THE APPELLEE : FOR THE APPELLANT : R. EDDI E DAVI DSON JOHN KNOX WALKUP 601 Woodland Street Attorney Generaland Reporter Nashvill e, TN 37206 DARYL J. BRAND Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 LAWRENCE RAY WHITLEY Distri ct Attorney General DEE GAY Assistant Distri ct Attorney General 113 West Main Street Gallati n, TN 37066
OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES , JUD GE1 See Tenn. Code Ann. § 55-9-404. -2- 

# OPINION

This is an appea l by the State as of ri ght pu rsuant to Rul e 3(c) of t he Tennessee Rules of Ap pellate Pro cedure
. The D efenda nt filed a m otion to suppress evidence seized during a se arch o f his automobile. The trial j udge determined that the eviden ce ha d bee n illega lly seiz ed and g ranted the Defe ndan t’s motion to suppre ss. We reverse the judgment of the tri al court an d remand this case for further proceedings.

On March 13, 1 996, at ab out 9 :10 p .m., Sumner County De puty Sher iff Jerry Carpenter

was on routi ne patrol with his cani ne “partner ,” Coaster, a threeyearold golden retri ever certif ied by the United States Poli ce K-9 Associati on as a drug detection dog. The deputy obse r ved the Defendant ’s pickup t ruck and noticed that the v

ehicle had no l ight il luminati ng the rear lice nse plate as required by law. 1 Because of thi s vehicl e lighti ng law viol ation, the offic er activa ted his blue lights and stopped the Defendant’s vehicl e. The of ficer advised the Defendantthathe had stopped him for not having a li ght illuminati ng his license plate and asked t he Defendant for his dri ver’s l icense. The of ficer testifi ed that he did not know t he Defendant and as faras he knew, had never had any prior contact wit h hi m. The officer ra dioed his disp atche r with the Defe ndan t’s driver ’s lice nse number for verificati on that the license was v alid and to check for any possible outstand ing warra nts aga inst the D efenda nt.-3- The officer said th at the De fendan t had go tten out of h is vehi cle, l eaving the driver’ s side door open, and gone to the back of the vehi cle to check the area around the license plate. At this tim e, the dep uty struck up aconvers ation with the Defendant, aski ng him if hehad everbeen arrested bef ore. The Defendant answered that he had. The officer asked him what he had been arrested for, and the Defendantsaid that it wa s over so me “trou ble with his ex-wife.” The officer asked if it was “dom estic-relate d trouble ,” but the Defendant advised that he had wrecked his truc k and had been arrested“for dope.” When the offi cer asked the Defendantwhat kind of “dope” the Defendant state d thatit had been marijuana. The officer

then asked if the De fenda nt had mariju ana in his veh icl e at

that t ime and said th at the D efend ant the n “bec ame visibly ne rvous by sha kin g and tremblin g.” He said that the Defendant “ki nd of stammered a reply, but it w as no.”

The deputy said that he then a sked the De fenda nt if he w ould give consent for a search of his vehicle
. He sa id the D efend ant as ked w hat wo uld ha ppen if h e di d not c onse nt to the searc h and the de puty re plied th at noth ing wo uld happen and that“once I got the computer check back, he would recei ve a writ ten warning forthe violation of light law an d he wo uld be free to go.” The Defendant advised him that h e would rather tha t his vehicle n ot be sea rched.

At about this t ime, another of ficer, Deputy Thomas, arrived on the scene. Depu ty Carpenter asked t he Defendant to stand with Deputy Thomas, and w hile he was doing s o Deputy C arpenter got h is K-9 partner, C oaster, from his pat rol
carand broughthim to the Defendant’s vehic le for t he dog to “sni ff” ar ound the perimeter

of the De fendan t’s vehicle. The driver’ s side door r emained open from the ti me the Defendant had got ten out of the vehicle.As the dog approached t he2 Tenn. Code Ann. § 39-17-4 17, -425. -4-

open door, the do g indicated a positive a t the bottom of the doo r jam. De puty Carpenter

then al lowed the dog into t he vehicle at which t ime the dog gave a positive indicat ion on a blue deni m jacket ly ing in t he front seat. Inside the de nim jacket, the deputy found a l arge hunting kni fe and what he described as a “l arge amou nt” of marijuan a. A furt her sea rch found “w eighing s cales, se veral em pty plastic ba gs, seve ral marijua na roac hes, an d a ma rijuana pip e.”

The deputy stated that about the time th e Defendant was arr es ted an d placed in custo dy, the di spatcher radi oed back with i nformation that the Defe ndan t’s driver’s license was va lid and that there w ere no outstand ing
warran ts for him. The Defendan t was su bsequently i ndicted for one count of possessing more than one-half ounce of marij uana with t he intent to sellor deliver and one count of unl awful possessi on of drug paraphernalia. 2 T he Defendantfiled a m otio n to suppress allevidence tak en from his vehi cle, assertingthat the evidence was il legall y seized. The trialjud ge conducted an
e v identiary hearing on t he motion, duri ng which Deputy Carpenter testified concerning t he facts as stated herein. At the concl usion of t he hearing the trial judge took the matter underadvisement and later entered findi ngs includi ng the followi ng:
There is no qu estion that the defen dant w as law fully stopped by the offi cer for a v iolati on of T.C.A. 55- 19-404. Further, the Co urt findsthat the detention wa s not unduly long , but that it was for a reaso nable length of ti me a nd purpose. While th e defendant was being detained the offi ce r e ngaged the defendant in conversat ion and determined that he had a previous drug convi ction which prompted the officer to ask for con sent to searc h the d efend ant’s vehicle. This reques t was d enied. The off icer’s dog was then released from the pat rol unit and a “snif f” was conducted resulti ng in a “hit” indicating t he presence of drugs.-5- The drug dog is speci ally t rained and is able to use h is sense of smell in much t he same way as the human offi ceruses his sense of sight. Th e case of U.S. v. Place , 103 S .Ct. 2637 ( 1983) stands forthe proposi tion t hat the re is no expec tation o f privacy in contraband and a dog sniff does not viol ate anyprivacy interest and is, therefor

e, not a search under the Fourt h Amen dmen t. Had the of fice r, upon stopping t he car, gotten the dog out to do a sniff , the findingof the drugs would be admissible i n this court’s o pinion. In the case at bar, he, th e defen dant, was being held pending a license check and wa s not free to leave. During the dur ation of the hold he was questioned by

the offi cer and a request was made to sea rch his vehicle. The officer

used his ref usal as the basi s on which to get the dog out of the c ar to con duct a “sn iff.” Once the defendant ref used to have h is car se arche d as th e resu lt of custodi al questi oning, that should have ended the matter.
The trialjudge theref

ore entered an ord er gran ting the Defe ndan t’s motion to suppre ss th e evide nce. It is from the trialcourt’s order suppressi ng the evidence that the State appeals.

On appea l, the State asserts, as the tri al judge found, that the Defendant
was lawfull y stopped and that the lengt h of his detention was reas onable. The State argues that a “ dog sn iff” is not a “search” under t he Fourth Amendment prohibit ion of unreasonabl e searches and s eizures. Thus, because the Defendantwas be ing legally d etained , the State argues that n either proba ble
caus e nor reasonable suspicion was ne eded prior to the ini tiati on of the “do g sniff” around the De fenda nt’s vehicle. The State then ar gues that once t he dog gave a positi ve indicat ion for t he presence of i llegal drugs, thi s gave the off icer proba ble cause to conduct the f urther search of the vehi cle. The State argues thatthe fact that

the officer used t he Defendant’s refusal to consent t o the search
as o ne of the reasons for d eciding to cond uct the “dog sn iff” around the car, which the trial court foun d objectio nable, is sim ply irrelevan t.-6- In response, the Defendant, whi le admitt ing that the officer made a lawful stop, asser

ts that hi s detenti on became unreasonable when he was directed to stand with another

officer while the“dog sniff ” took place. He argues that proba ble cause, or at least a reason able sus picion, sh ould be required to justify the “dog sni ff/sear

ch” of his

vehicle.
Any warrantle ss searc h is presu mptively u nreaso nable u nder the Fourth Ame ndme nt. Minnesota v. Dickerson , 508 U.S. 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993) . However, t here are a few exceptionsto the war rant requirem ent. Katz v. United States , 389 U.S . 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Fuqua v. Armour , 543 S.W.2d 64, 66 (Tenn. 1976). Those who seek to excep t a search from the requirem ent must sh ow that the officers had compelling r

easons to just ify t he search
. Coolidge v. New Ha mpshire , 403 U.S. 443, 455, 91 S.Ct . 2022, 2032, 29 L.Ed.2d 564, reh’g denied , 404 U.S. 874, 92 S.Ct. 26, 30

L.Ed.2d 120 (19 71); Fuqua , 543 S.W .2d at 67. Before th e fruits of a warr antles s sea rch are adm issible as evidence, the State must establish by
a prepo ndera nce o f the evid ence that the searc h falls int o one of the n arrow ly drawn exceptions

to the wa rrant requ iremen t. State v. Shaw , 603 S.W.2d 741, 743 (Ten n. Crim. App . 1980).

Warrantless searches o f automob iles under certain circu mstance s are allowed. Carroll v . United States , 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69L.Ed. 543 (1925); State v. Shrum , 643 S. W.2d 891, 8 93 (Tenn.1982). An autom obile may be searched wit hout a w arran t if the officer has prob able cause to believe thatthe vehicl e cont ains c ontraband and i f exigent circumstances r

equire an imme diate search. Carro ll , 267 U.S. at 149, 45 S.Ct. at 283-84. In Cham bers v.-7-

Maroney , 399 U.S. 42, 90 S .Ct. 1975, 2 6 L.Ed.2 d 419, reh’g denied , 400 U. S. 856, 91 S.C t. 23, 27 L.Ed.2 d 94 (1 970), th e Cou rt held th at whe re prob able cause to search e xists, the immediate search of a vehicleis no more int rusive t han a seizure and subsequen t search. Therefore, the Fourth Amendment authori zes the police either to seize and hol d the vehicle unti l a search warrant has i ssued
o r to search the vehicle imme diately. Cham bers , 399 U.S. at 52, 90 S.Ct. a t 1981.
Clearly, the tem porar y deten tion of in dividua ls during the sto p of a ve hicle by police, even if only for a brief peri od and for a ver y limited purpose, const itutes
a “seizure” w hich impli cates the pr otection of both the state and federal constit utional provisions
. Whren v. United States , 517 U.S. 806, 116 S.Ct. 1769, 1772, 135 L.E d.2d 89 (1996); Delaware v. Prouse , 440 U.S. 648, 653- 54 , 99 S.Ct. 1391, 1396, 59 L. Ed.2d 660 ( 1979); State v. Pully , 863 S.W.2d 29, 30 (Tenn. 1993 ). As a gene ralrul e, h owever, thesto p of an a uto mo bi le is
cons titutiona lly reasonable, under both the state and federal co nstitut ions, i f the police have p robabl e cau se or re ason able s uspic ion to b elieve th at a traffic violat ion has occ urred. Id . In such a case , the sto p is valid eve n if it is in fact a “pretext ual stop.” Whren , 116 S.C t. at 1774 ; State v. Vineyard , 958 S.W.2d 730, 736 (Tenn. 1997). In the case su b judice , the recor d clearly

supports t he trial court’s finding that the Defe ndan t’s vehic le was la w fully stop ped fo r a traffic offens e, and the De fenda nt con cede s this po int in this appe al.

Once the offi cer had legal ly stoppedthe Defe ndan t’s vehic le, he p roper ly proceeded with an investi gatory detention, al so sometimes refer red to as a Terry stop. Althoug h less i ntrusive than a full -blown arrest, an investi gatory detention-8-

is subject to the cons titu tion al protection of the Fourth Amendment against “unreason able search es and se izures.” Terry v. Ohio , 392 U.S . 1, 20, 88 S .Ct. 1868, 1879, 20 L.Ed.2d 8 89 (1968). I nteracti ons between the pol ice and t he public that const itute se izures but not arrests are judged by their reasonableness rather than by a showi ng of probable cause. Id
. The reasonableness of the intrusio n is “jud ged b y weigh ing the gravity o f the pu blic concern, t he degree to which the seizure ad vances that co ncern, and the severi ty o f the intrusion into indivi dual privacy.” Pully , 863 S.W.2d at 30 (cit ing Brown v. Texas , 443 U.S. 47, 50, 99 S.C t. 2637, 2640, 6 1 L.Ed.2d 3 57 (1979)).

The trialcourt fou nd t hat the le ngth of the detention, for the purpose of verif ying the validity of the Defen dant’s drive r’s license a nd to check for pos sible outstandin g warra nts, wa s reas onab le. W e belie ve the r ecord supp orts this finding. During th is otherw ise legal an d prope r detention , the officer d ecided to have his drug detection dog conduct a “sniff” or “sweep” around t he outside of the D efend ant’s vehicle. A sweep of the outside of a ve hicle by a trained dru g detectiondog do es not co nstitute a search for Fourth Amendment purposes, but is a legitimate investigative techniqu e. See United States v. Place , 462 U.S. 696, 707, 103 S.C t. 2637, 77 L.Ed.2d 110 (19 83); Merrett v. Moore , 58 F.3 d 1547, 1553 (11th Cir. 1 995), cert. deni ed , 117 S.C t. 58, 136 L.Ed.2d21 (199 6); Romo
v. Champion , 46 F.3d 1013, 1 018 (10 th Cir. 199 5), cert. deni ed , 116 S.Ct. 387, 133 L.Ed.2d 309 (19 95); United S tate s v . Jeffus , 22 F.3d 554 , 557 (4th Cir. 1994); Unite d St ates v. Morales-Z amora , 914 F.2d 20 0, 203 (10th C ir. 1990). See also State v. James Smith, Jr. , C. C.A. No. 38, Shel by Co unty ( Tenn . Cr im. App., Jacks on, Dec. 14, 1 988).-9- Be cause the offi cer could have taken thi s action at any time duri ng the otherwise legal detention, we do not be lieve tha t the fac t that he took th is action only after t he Defendant ref used to consent to the search is reason to render the search illegal. See State v. David Price , C.C.A. No. 02C01 -961 0-CC-00356, We akley Coun ty (Tenn. Crim . App., Jackso n, Aug. 25, 19 97).

The only remaini ng issue is whether the posi tive i ndicati on by the drug detectiondog furnis hed probable caus e for the sear ch of the vehi cle which l ed to discovery

of the evi dence. We believe the weigh t o f authori ty supports the findingof probable cause based on the act ion of a t rained narcot ics detect ion dog. See Romo , 46 F.3d at 1 020; Jeffus , 22 F.3d at 5 57; State v. James Smith, Jr. , C.C.A. No. 38, Shel by County (Tenn. Cri m. App., Jackson, Dec. 14, 198 8). We believe this pos ition i s reasonable and sound.

In sum mary , the au tomo bile lighting violatio n provide d the office r with the legal justi ficati on for the st op of the vehicle. While the vehicl e was being legally detained, ne ither pr

obable cause nor r

easonable suspic ion was needed for the officer to allow thedrug dog to “sn iff” or “sweep” t he exteri or of the vehicle. When the dog in dicate d pos it ive fo r the pre senc e of illeg al drug s in the vehicle , this action provided the officer w ith proba ble caus e to sear ch th e v ehicle for the drugs.

The judgment of the trial court suppressing t he eviden ce is re verse d. This case is remanded for further proceedings.-10- ____________________________________ DAVID H. WELLES , JUD GE
CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JERRY L . SMI TH, J UDGE