FILED

March 31, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9702-CR-00064

)

Appellant, )

)

) SUMNER COUNTY

VS. )

) HON. JANE WHEATCRAFT

DENNIS R. ENGLAND, ) JUDGE

)

Appellee. ) (State Appeal-Vehicle Search)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SUMNER COUNTY

FOR THE APPELLEE: FOR THE APPELLANT:

R. EDDIE DAVIDSON JOHN KNOX WALKUP

601 Woodland Street Attorney General and Reporter

Nashville, TN 37206

DARYL J. BRAND

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

LAWRENCE RAY WHITLEY

District Attorney General

DEE GAY

Assistant District Attorney General

113 West Main Street

Gallatin, TN 37066

OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
1

See Tenn. Code Ann. § 55-9-404.

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OPINION

This is an appeal by the State as of right pursuant to Rule 3(c) of the

Tennessee Rules of Appellate Procedure. The Defendant filed a motion to

suppress evidence seized during a search of his automobile. The trial judge

determined that the evidence had been illegally seized and granted the

Defendant’s motion to suppress. We reverse the judgment of the trial court and

remand this case for further proceedings.

On March 13, 1996, at about 9:10 p.m., Sumner County Deputy Sheriff

Jerry Carpenter was on routine patrol with his canine “partner,” Coaster, a threeyear old golden retriever certified by the United States Police K-9 Association as

a drug detection dog. The deputy observed the Defendant’s pickup truck and

noticed that the vehicle had no light illuminating the rear license plate as required

by law.1

 Because of this vehicle lighting law violation, the officer activated his

blue lights and stopped the Defendant’s vehicle. The officer advised the

Defendant that he had stopped him for not having a light illuminating his license

plate and asked the Defendant for his driver’s license. The officer testified that

he did not know the Defendant and as far as he knew, had never had any prior

contact with him. The officer radioed his dispatcher with the Defendant’s driver’s

license number for verification that the license was valid and to check for any

possible outstanding warrants against the Defendant.
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The officer said that the Defendant had gotten out of his vehicle, leaving

the driver’s side door open, and gone to the back of the vehicle to check the area

around the license plate. At this time, the deputy struck up a conversation with

the Defendant, asking him if he had ever been arrested before. The Defendant

answered that he had. The officer asked him what he had been arrested for, and

the Defendant said that it was over some “trouble with his ex-wife.” The officer

asked if it was “domestic-related trouble,” but the Defendant advised that he had

wrecked his truck and had been arrested “for dope.” When the officer asked the

Defendant what kind of “dope” the Defendant stated that it had been marijuana.

The officer then asked if the Defendant had marijuana in his vehicle at that time

and said that the Defendant then “became visibly nervous by shaking and

trembling.” He said that the Defendant “kind of stammered a reply, but it was no.”

The deputy said that he then asked the Defendant if he would give consent

for a search of his vehicle. He said the Defendant asked what would happen if

he did not consent to the search and the deputy replied that nothing would

happen and that “once I got the computer check back, he would receive a written

warning for the violation of light law and he would be free to go.” The Defendant

advised him that he would rather that his vehicle not be searched. 

At about this time, another officer, Deputy Thomas, arrived on the scene.

Deputy Carpenter asked the Defendant to stand with Deputy Thomas, and while

he was doing so Deputy Carpenter got his K-9 partner, Coaster, from his patrol

car and brought him to the Defendant’s vehicle for the dog to “sniff” around the

perimeter of the Defendant’s vehicle. The driver’s side door remained open from

the time the Defendant had gotten out of the vehicle. As the dog approached the
2

Tenn. Code Ann. § 39-17-417, -425.

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open door, the dog indicated a positive at the bottom of the door jam. Deputy

Carpenter then allowed the dog into the vehicle at which time the dog gave a

positive indication on a blue denim jacket lying in the front seat. Inside the denim

jacket, the deputy found a large hunting knife and what he described as a “large

amount” of marijuana. A further search found “weighing scales, several empty

plastic bags, several marijuana roaches, and a marijuana pipe.”

The deputy stated that about the time the Defendant was arrested and

placed in custody, the dispatcher radioed back with information that the

Defendant’s driver’s license was valid and that there were no outstanding

warrants for him. The Defendant was subsequently indicted for one count of

possessing more than one-half ounce of marijuana with the intent to sell or

deliver and one count of unlawful possession of drug paraphernalia.2 The

Defendant filed a motion to suppress all evidence taken from his vehicle,

asserting that the evidence was illegally seized. The trial judge conducted an

evidentiary hearing on the motion, during which Deputy Carpenter testified

concerning the facts as stated herein. At the conclusion of the hearing the trial

judge took the matter under advisement and later entered findings including the

following:

There is no question that the defendant was lawfully stopped

by the officer for a violation of T.C.A. 55-19-404. Further, the Court

finds that the detention was not unduly long, but that it was for a

reasonable length of time and purpose. While the defendant was

being detained the officer engaged the defendant in conversation

and determined that he had a previous drug conviction which

prompted the officer to ask for consent to search the defendant’s

vehicle. This request was denied. The officer’s dog was then

released from the patrol unit and a “sniff” was conducted resulting

in a “hit” indicating the presence of drugs.
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The drug dog is specially trained and is able to use his sense

of smell in much the same way as the human officer uses his sense

of sight. The case of U.S. v. Place, 103 S.Ct. 2637 (1983) stands

for the proposition that there is no expectation of privacy in

contraband and a dog sniff does not violate any privacy interest and

is, therefore, not a search under the Fourth Amendment. Had the

officer, upon stopping the car, gotten the dog out to do a sniff, the

finding of the drugs would be admissible in this court’s opinion. In

the case at bar, he, the defendant, was being held pending a license

check and was not free to leave. During the duration of the hold he

was questioned by the officer and a request was made to search his

vehicle. 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 the result of custodial questioning, that

should have ended the matter.

The trial judge therefore entered an order granting the Defendant’s motion

to suppress the evidence. It is from the trial court’s order suppressing the

evidence that the State appeals.

On appeal, the State asserts, as the trial judge found, that the Defendant

was lawfully stopped and that the length of his detention was reasonable. The

State argues that a “dog sniff” is not a “search” under the Fourth Amendment

prohibition of unreasonable searches and seizures. Thus, because the

Defendant was being legally detained, the State argues that neither probable

cause nor reasonable suspicion was needed prior to the initiation of the “dog

sniff” around the Defendant’s vehicle. The State then argues that once the dog

gave a positive indication for the presence of illegal drugs, this gave the officer

probable cause to conduct the further search of the vehicle. The State argues

that the fact that the officer used the Defendant’s refusal to consent to the search

as one of the reasons for deciding to conduct the “dog sniff” around the car,

which the trial court found objectionable, is sim ply irrelevant.
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In response, the Defendant, while admitting that the officer made a lawful

stop, asserts that his detention became unreasonable when he was directed to

stand with another officer while the “dog sniff” took place. He argues that

probable cause, or at least a reasonable suspicion, should be required to justify

the “dog sniff/search” of his vehicle.

Any warrantless search is presumptively unreasonable under the Fourth

Amendment. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 2135,

124 L.Ed.2d 334 (1993). However, there are a few exceptions to the warrant

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 except a search from the requirement must show that the officers

had compelling reasons to justify the search. Coolidge v. New Hampshire, 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 (1971); Fuqua, 543 S.W .2d at 67. Before the fruits

of a warrantless search are admissible as evidence, the State must establish by

a preponderance of the evidence that the search falls into one of the narrowly

drawn exceptions to the warrant requirement. State v. Shaw, 603 S.W.2d 741,

743 (Tenn. Crim. App. 1980).

Warrantless searches of automobiles under certain circumstances are

allowed. Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed.

543 (1925); State v. Shrum, 643 S.W.2d 891, 893 (Tenn. 1982). An automobile

may be searched without a warrant if the officer has probable cause to believe

that the vehicle contains contraband and if exigent circumstances require an

immediate search. Carroll, 267 U.S. at 149, 45 S.Ct. at 283-84. In Chambers v.
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Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, reh’g denied, 400 U.S.

856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970), the Court held that where probable cause

to search exists, the immediate search of a vehicle is no more intrusive than a

seizure and subsequent search. Therefore, the Fourth Amendment authorizes

the police either to seize and hold the vehicle until a search warrant has issued

or to search the vehicle immediately. Chambers, 399 U.S. at 52, 90 S.Ct. at

1981.

Clearly, the temporary detention of individuals during the stop of a vehicle

by police, even if only for a brief period and for a very limited purpose, constitutes

a “seizure” which implicates the protection of both the state and federal

constitutional provisions. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769,

1772, 135 L.Ed.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 general rule, however, the stop of an automobile is

constitutionally reasonable, under both the state and federal constitutions, if the

police have probable cause or reasonable suspicion to believe that a traffic

violation has occurred. Id. In such a case, the stop is valid even if it is in fact a

“pretextual stop.” Whren, 116 S.Ct. at 1774; State v. Vineyard, 958 S.W.2d 730,

736 (Tenn. 1997). In the case sub judice, the record clearly supports the trial

court’s finding that the Defendant’s vehicle was lawfully stopped for a traffic

offense, and the Defendant concedes this point in this appeal.

Once the officer had legally stopped the Defendant’s vehicle, he properly

proceeded with an investigatory detention, also sometimes referred to as a Terry

stop. Although less intrusive than a full-blown arrest, an investigatory detention
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is subject to the constitutional protection of the Fourth Amendment against

“unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct.

1868, 1879, 20 L.Ed.2d 889 (1968). Interactions between the police and the

public that constitute seizures but not arrests are judged by their reasonableness

rather than by a showing of probable cause. Id. The reasonableness of the

intrusion is “judged by weighing the gravity of the public concern, the degree to

which the seizure advances that concern, and the severity of the intrusion into

individual privacy.” Pully, 863 S.W.2d at 30 (citing Brown v. Texas, 443 U.S. 47,

50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979)).

The trial court found that the length of the detention, for the purpose of

verifying the validity of the Defendant’s driver’s license and to check for possible

outstanding warrants, was reasonable. We believe the record supports this

finding. During this otherwise legal and proper detention, the officer decided to

have his drug detection dog conduct a “sniff” or “sweep” around the outside of the

Defendant’s vehicle. A sweep of the outside of a vehicle by a trained drug

detection dog does not constitute a search for Fourth Amendment purposes, but

is a legitimate investigative technique. See United States v. Place, 462 U.S. 696,

707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Merrett v. Moore, 58 F.3d 1547,

1553 (11th Cir. 1995), cert. denied, 117 S.Ct. 58, 136 L.Ed.2d 21 (1996); Romo

v. Champion, 46 F.3d 1013, 1018 (10th Cir. 1995), cert. denied, 116 S.Ct. 387,

133 L.Ed.2d 309 (1995); United States v. Jeffus, 22 F.3d 554, 557 (4th Cir.

1994); United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990).

See also State v. James Smith, Jr., C.C.A. No. 38, Shelby County (Tenn. Crim.

App., Jackson, Dec. 14, 1988).
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Because the officer could have taken this action at any time during the

otherwise legal detention, we do not believe that the fact that he took this action

only after the Defendant refused to consent to the search is reason to render the

search illegal. See State v. David Price, C.C.A. No. 02C01-9610-CC-00356,

Weakley County (Tenn. Crim. App., Jackson, Aug. 25, 1997).

The only remaining issue is whether the positive indication by the drug

detection dog furnished probable cause for the search of the vehicle which led

to discovery of the evidence. We believe the weight of authority supports the

finding of probable cause based on the action of a trained narcotics detection

dog. See Romo, 46 F.3d at 1020; Jeffus, 22 F.3d at 557; State v. James Smith,

Jr., C.C.A. No. 38, Shelby County (Tenn. Crim. App., Jackson, Dec. 14, 1988).

We believe this position is reasonable and sound.

In summary, the automobile lighting violation provided the officer with the

legal justification for the stop of the vehicle. While 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 of the vehicle. When

the dog indicated positive for the presence of illegal drugs in the vehicle, this

action provided the officer with probable cause to search the vehicle for the

drugs.

The judgment of the trial court suppressing the evidence is reversed. This

case is remanded for further proceedings.
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____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JERRY L. SMITH, JUDGE