        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                       JANUARY SESSION, 1998         March 31, 1998

                                                 Cecil W. Crowson
STATE OF TENNESSEE,        )                   Appellate Court Clerk
                                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 Search)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SUMNER COU NTY


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 Avenu e 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
                                      OPINION

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

Tennessee Rules of Ap pellate Procedure . The D efenda nt filed a m otion to

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

determined that the eviden ce ha d bee n illega lly seized and granted the

Defe ndan t’s motion to suppre ss. 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 three-

year 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 lice nse plate as required

by law.1 Because of this vehicle lighting law violation, the offic er activa ted 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 ra dioed his disp atche r with the Defe ndan t’s driver ’s

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

possible outstand ing warra nts aga inst the D efenda nt.




1
    See Tenn. Code Ann. § 55-9-404.

                                          -2-
      The officer said th at the De fendan t had go tten out of h is 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 tim e, the dep uty struck up a convers ation 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 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 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 De fenda nt had mariju ana in his vehicle at that time

and said th at the D efend ant the n “bec ame visibly ne rvous by sha king and

tremblin g.” He said that the Defendant “kind 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

he did 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 receive a written

warning for the 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 time, another officer, Deputy Thomas, arrived on the scene.

Depu ty Carpenter asked the 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 patrol

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

perimeter of the De fendan t’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

                                         -3-
open door, the dog indicated a positive a t the bottom of the doo r jam. De puty

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 de nim

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

amou nt” of marijuana. A further search 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 the Defendant was arrested and

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

Defe ndan t’s driver’s license was va lid and that there were no outstanding

warran ts 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 m otion 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 qu estion that the defen dant w as law fully stopped
          by the officer for a violation of T.C.A. 55-19-404. Further, the Co urt
          finds that the detention wa s not unduly long , but that it was for a
          reaso nable 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 con sent to searc h the d efend ant’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.

2
    Tenn. Code Ann. § 39-17-417, -425.

                                            -4-
              The drug dog is specially trained and is able to use h is sense
       of smell in much the same way as the human officer uses his sense
       of sight. Th e case of U.S. v. Place, 103 S.Ct. 2637 (1983) stands
       for the proposition that there is no expec tation o f privacy in
       contraband and a dog sniff does not violate any privacy interest and
       is, therefore, not a search under the Fourth Amendmen t. 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, th e defen dant, was being held pending a license
       check and wa s not free to leave. During the duration of the hold he
       was questioned by the officer and a request was made to sea rch his
       vehicle. The officer used his refusal as the basis on which to get the
       dog out of the c ar to con duct a “sn iff.” Once the defendant refused
       to have h is car se arche d as th e resu lt of custodial questioning, that
       should have ended the matter.


       The trial judge therefore entered an ord er gran ting the Defe ndan t’s motion

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

evidence that the State appeals.



       On appea l, 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 be ing legally d etained , the State argues that neither proba ble

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

sniff” around the De fenda nt’s vehicle. The State then argues that once the dog

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

proba ble 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 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.




                                          -5-
      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

proba ble cause, or at least a reason able sus picion, sh ould be required to justify

the “dog sniff/search” 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, 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 excep t a search from the requirem ent must sh ow that the officers

had compelling reasons to justify the 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 preponderance 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, 69 L.Ed.

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

may be searched without a warran t if the officer has prob able cause to believe

that the vehicle contains contraband and if exigent circumstances require an

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

                                         -6-
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 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 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 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.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 general rule, however, the stop of an automobile is

cons titutiona lly reasonable, under both the state and federal constitutions, if the

police have probable cau se or re ason able s uspic ion to b elieve th at a traffic

violation has occ urred. Id. In such a case , the sto p is valid eve n if it is in fact a

“pretextual stop.” Whren, 116 S.C t. 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 Defe ndan t’s vehic le was lawfully 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 officer had legally stopped the Defe ndan t’s vehic le, he p roper ly

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

stop. Although less intrusive than a full-blown arrest, an investigatory detention

                                            -7-
is subject to the cons titutional 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 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

intrusio n is “jud ged b y weigh ing the gravity o f the pu blic concern, the degree to

which the seizure ad vances that co ncern, 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.C t. 2637, 2640, 6 1 L.Ed.2d 3 57 (1979)).



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

verifying the validity of the Defen dant’s drive r’s license a nd to check for pos sible

outstanding 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 the outside of the

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

detection dog 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.3d 1547,

1553 (11th Cir. 1 995), cert. denied, 117 S.C t. 58, 136 L.Ed.2d 21 (199 6); Romo

v. Champion, 46 F.3d 1013, 1 018 (10 th Cir. 199 5), cert. denied, 116 S.Ct. 387,

133 L.Ed.2d 309 (19 95); United S tates v. Jeffus, 22 F.3d 554 , 557 (4th Cir.

1994); United States 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, Shelby County (Tenn. Crim.

App., Jacks on, Dec. 14, 1 988).




                                          -8-
         Because the officer could have taken this action at any time during the

otherwise legal detention, we do not be lieve tha t the fac t that he took th is 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,

We akley Coun ty (Tenn. Crim . App., Jackso n, Aug. 25, 19 97).



         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 1 020; Jeffus, 22 F.3d at 5 57; State v. James Smith,

Jr., C.C.A. No. 38, Shelby County (Tenn. Crim. App., Jackson, Dec. 14, 198 8).

We believe this position is reasonable and sound.



         In sum mary , the au tomo bile lighting violatio n provide d the office r 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 in dicate d pos itive for 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 the vehicle for the

drugs.



         The judgment of the trial court suppressing the eviden ce is re verse d. This

case is remanded for further proceedings.




                                             -9-
                    ____________________________________
                    DAVID H. WELLES, JUDGE


CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JERRY L. SMITH, JUDGE




                             -10-
