                      IN THE SUPREME COURT OF TENNESSEE
                                 AT NASHVILLE

                STATE OF TENNESSEE v. DENNIS R. ENGLAND

                     Appeal from the Criminal Court for Sumner County
                             No. 9781   Jane Wheatcraft, Judge



                    No. M1999-00254-SC-R11-CO - Decided May 30, 2000
                                  FOR PUBLICATION



JUSTICE BIRCH, dissenting.

       I disagree with my colleagues. In my opinion, an officer must have reasonable suspicion of
criminal activity before ordering a canine sweep during an otherwise lawful investigatory stop.
Walter v. State, 997 S.W.2d 853, 858-63 (Tex. Ct. App. 1999).

         Here, the trial court found that the officer’s investigation should have ended upon England’s
having refused to consent to a search of his vehicle. The trial court stated, “the officer used his
(England’s) refusal as the basis on which to get the dog out of the car” to conduct a canine sweep.
It is apparent from the record, therefore, that the officer’s sole reason for ordering the canine sweep
was England’s refusal to consent. The refusal to consent to a search, however, does not constitute
reasonable suspicion. See United States v. White, 890 F.2d 1413, 1417 n.4 (8th Cir. 1989) (citing
Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236-37 (1983));see
also United States v. Fuentes, 105 F.3d 487, 490 (9th Cir. 1997); Karnes v. Skrutski, 62 F.3d 485,
495 (3rd Cir. 1995); United States v. Manuel, 992 F.2d 272, 274 (10th Cir. 1993). Thus, the officer
in this case lacked the necessary reasonable suspicion to justify a canine sweep. The canine sweep
of England’s car, therefore, violated his rights under Article I, § 7 of the Tennessee Constitution.

        Moreover, if the officer can use England’s refusal as consent to the intrusive sweep, then why
ask in the first place? Why not just subject every vehicle stopped for a minor equipment violation
to a canine sweep? I cannot condone such a result and therefore dissent.
