         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      June 29, 2005 Session

                 STATE OF TENNESSEE v. JUSTIN PAUL BRUCE

                     Appeal from the Criminal Court for Anderson County
                         No. A3CR0301      James B. Scott, Jr., Judge



                     No. E2004-02325-CCA-R3-CD - Filed August 22, 2005


Before the court is an appeal by the State as of right pursuant to Rule 3(c) of the Tennessee Rules
of Appellate Procedure. The defendant, Justin Paul Bruce, moved to suppress evidence seized
during a search of his automobile. The trial judge concluded that the evidence had been illegally
seized and granted the motion to suppress. We affirm the judgment of the trial court and remand this
case for further proceedings.

               Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and ROBERT W. WEDEMEYER , JJ., joined.

J. Thomas Marshall, Jr., District Public Defender, for the Appellee, Justin Paul Bruce.

Paul G. Summers, Attorney General & Reporter; David E. Coenen, Assistant Attorney General;
James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General,
for the Appellant, State of Tennessee.

                                               OPINION

                 This case represents another step in the legal evolution of narcotics detection through
canine “sniffs.” It is settled in terms of federal constitutional interpretation and Tennessee law that
the “sniff” of a narcotics-seeking canine is sui generis and does not implicate any legitimate privacy
interest; consequently, a canine sniff does not constitute a search under the Fourth Amendment and
requires neither probable cause nor reasonable suspicion. United States v. Place, 462 U.S. 696, 103
S. Ct. 2637 (1983); State v. England, 19 S.W.3d 762 (Tenn. 2000). Even so, when a canine sweep
is ancillary to a legitimate traffic stop, it may constitute an unlawful search if the suspect is detained
beyond the time necessary to complete the traffic stop because the detention itself becomes unlawful.
See United States v. Jacobsen, 466 U.S. 109, 124, 104 S. Ct. 1652, 1662 (1984) (seizure that is
lawful at its inception can violate Fourth Amendment if its manner of execution unreasonably
infringes interests protected by constitution); State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002)
(reasonable traffic stop can become unreasonable and constitutionally invalid if time, manner, or
scope of investigation exceeds the proper parameters).

                In this case, the trial court ruled that “the canine sweep of the defendant’s vehicle
occurred after the time necessary to complete the traffic stop.” The trial court thus granted the
defendant’s motion to suppress marijuana and drug paraphernalia found during a search of the
defendant’s automobile, which was based on a positive canine alert.1 The state challenges that ruling
and asks us to reverse the order granting the suppression motion.

               We begin by recounting the facts underlying the suppression ruling and note that the
defendant did not contest the legitimacy of his traffic stop for speeding. At the hearing on the
suppression motion, Clinton Police Department Officer Darvin Cox testified that he stopped the
defendant’s vehicle for speeding on April 5, 2003. The stop occurred at approximately 9:51 p.m.
on Charles Seivers Boulevard just west of Miller Road. The defendant was traveling 104 miles per
hour in a 55 miles-per-hour zone.

                 Officer Cox explained that after the stop, both he and the defendant exited their
respective vehicles. The defendant walked to the front of the police vehicle, at which point Officer
Cox told the defendant that he “observed [him] running 104 miles an hour in a 55.” The defendant’s
response was “that there was no traffic out, and he just wanted to open it up.” Officer Cox advised
the defendant that he was going to issue a citation, and Officer Cox testified that he asked the
defendant to return to his vehicle, to which the defendant replied that he would “stand right here,
that’ll be fine.” Officer Cox then stepped back to his patrol car, picked up his citation book, opened
it to begin writing, and simultaneously called K-9 Officer Rick Coley to come to the scene. Officer
Cox testified that he called Officer Coley because he was suspicious that the defendant did not want
the officer near his vehicle and because as the officer spoke to the defendant, “he wouldn’t look me
in the face[;] [h]is hands were dug down in his pockets[;] [h]e had like a nervousness about his
person[, and] there was a reluctance to go back to his car.” In other words, Officer Cox “suspected
drugs.”

                  Officer Cox estimated that Officer Coley arrived in five to six minutes. During that
time, Officer Cox said that he was writing “all the pertinent information” for the one-page citation
and was running a check for any possible outstanding local warrants on the defendant. Officer Cox
was still filling out the citation when Officer Coley walked up to the cruiser. Officer Cox denied that
he stalled in completing the citation to give Officer Coley time to arrive, and Officer Cox maintained
that it took him no longer than usual to issue the citation to the defendant.




         1
           W e note that the Anderson County Grand Jury returned a three-count indictment charging the defendant in
Count 1 with possession of marijuana, in Count 2 with possession of drug paraphernalia, and in Count 3 with operating
a motor vehicle in excess of the posted speed limit. In our opinion, the trial court’s ruling did not reach the indicted
charge of speeding in Count 3.

                                                          -2-
                 Officer Cox communicated his suspicions to Officer Coley, at which point Officer
Cox got out of his cruiser and approached the defendant to obtain additional information for the
citation. Officer Cox asked the defendant his height, weight, and year of his vehicle. Officer Cox
was uncertain when the canine sweep actually occurred. He recalled handing the citation and
driver’s license back to the defendant. He testified, “And as soon as I was through, I asked the
defendant, I said: Mr. Bruce, by the way, do you have any drugs in your car? Would you mind if I
searched your vehicle?” Officer Cox said that the defendant’s response was: “You’ve got a canine
here, let him find it.” It was at that point that Officer Coley advised Officer Cox that he had already
conducted a canine sweep and that the dog had “alerted” on the driver’s door. One point eight grams
of marijuana were discovered in a plastic baggie positioned between the driver’s seat and the console
of the car.

                Officer Cox estimated that 17 to 18 minutes elapsed between the time he stopped the
defendant’s vehicle and the time when Officer Coley arrived with his dog. He was less certain how
much time elapsed between calling Officer Coley and Coley’s arrival. He testified, “I’m not for sure,
that was eight minutes,” and “If I’m not mistaken, it was six-to-eight minutes.” Officer Cox claimed
that 17 to 18 minutes is the average amount of time it takes to fill out a traffic citation, and he added
that it also depended on how long it took the dispatcher to relay back to him the information about
the wants and warrants.

                 On cross-examination, Officer Cox clarified that the 17- to 18-minute period referred
to the time between pulling the defendant over for the traffic stop and when the canine “alerted” on
the car, but he added, “If I’m not mistaken, that’d be my speculation.” The officer affirmed that as
he was pulling the defendant over, he contacted the dispatcher, called in the stop as a traffic stop, and
provided the license number of the defendant’s vehicle. Officer Cox did not recall if the dispatcher
responded with a name or a vehicle description for the license number. He also could not recall how
long it took the dispatcher to get back to him with the information that no warrants were outstanding
for the defendant.

                In terms of filling out the citation, Officer Cox testified on cross-examination that it
took him eight minutes to write the defendant’s name, address, and the fact that he was speeding and
to check for outstanding local warrants. The officer admitted that much of the information for the
citation, such as name, address, and driver’s license number, expiration date, and class of license was
contained on the defendant’s driver’s license, which he consulted as he was writing up the citation.

                On redirect examination, Officer Cox said that he actually removed the marijuana
from the defendant’s vehicle. The state inquired, “And had you approached the driver’s side window
when you first stopped him, would you have been able to see that in plain view?” The officer
replied, “No, ma’am,” and explained that the marijuana was “[b]etween the seat and the console,
tucked down in-between the seat.” A pack of “rolling papers” was with the marijuana. The officer
did not recall if he detected the odor of marijuana when he approached the driver’s side of the
vehicle.



                                                  -3-
                The defendant took the stand and admitted that he was speeding when Officer Cox
stopped him. He denied, however, immediately getting out of his vehicle. He testified, “At no time
did I ever step out of the car without his request. He was on my door side when he got the i.d. from
me.” After obtaining the identification, the officer instructed the defendant to get out of his vehicle,
and the two men walked to the front of the officer’s cruiser. The defendant said that he provided his
driver’s license and insurance card to the officer. The defendant estimated that it took the officer
“about ten minutes” to write the “ticket.”

                According to the defendant, as the officer was writing the citation, “a couple of more
cars pulled up but they stood to the rear where [the defendant] couldn’t see [‘]em.” After the officer
returned the defendant’s license and gave him the citation, the defendant put both items in his right
back pocket and turned around at which time he saw a dog being led around his vehicle; the dog
“immediately sat down” when he reached the driver’s side door. The defendant testified that he was
never told that he could leave and that he did not believe that he was free to leave.

                On cross-examination, the defendant acknowledged that he had been stopped multiple
times and in different counties for speeding. In terms of being allowed to leave after receiving the
written citations, the defendant distinguished the earlier incidents on the basis that he “never was
asked to step out of the car in any of them situations.” The defendant reiterated the sequences of
events in the instant case as Officer Cox approaching his vehicle, getting the defendant’s license,
returning to the police cruiser, and later asking the defendant to step out of his vehicle. The
defendant denied having used any intoxicants the evening he was stopped, although he admitted that
he possessed the marijuana for personal use.

               At the conclusion of the hearing, the trial court took the motion under advisement and
requested that the parties submit legal briefs on the suppression issue. The trial court issued a
written order on October 29, 2004, sustaining the motion to suppress. That order provides as
follows:

                      This cause came on to be heard on April 19, 2004, before the
               Honorable James B. Scott, Judge of the Criminal Court for Anderson
               County, Tennessee, upon the Defendant’s motion to suppress
               evidence seized as a result of a dog sniff that occurred without the
               Defendant’s consent and after the Defendant had been detained for an
               unreasonably long time for the writing of a speeding ticket. During
               the April 19, 2004 evidentiary hearing, the Court heard, weighed, and
               evaluated testimony from Officer Darvin Cox of the Clinton Police
               Department and from the Defendant. The only exhibit admitted into
               evidence was the citation for speeding that Officer Cox wrote for the
               Defendant.

                     After careful consideration of the testimony, exhibit,
               arguments and briefs of counsel, and the record of this cause as a


                                                  -4-
               whole, the Court finds that the Defendant was illegally detained,
               without probable cause or reasonable suspicion, after the reasonable
               time for issuance of a speeding citation had passed. The officer’s
               testimony that seventeen (17) to eighteen (18) minutes passed
               between the traffic stop and the arrival of the drug dog that he
               summoned, as well as the fact that all of the information needed for
               the citation was quickly and readily available to the officer,
               demonstrates to the Court that the Defendant was detained beyond the
               time necessary to accomplish the legitimate purpose of the traffic stop
               for speeding. The canine sweep of the Defendant’s vehicle occurred
               after the time necessary to complete the traffic stop. The Court
               further finds that no circumstances described in the evidence of
               record would support a finding of reasonable suspicion or probable
               cause to detain the Defendant beyond the time reasonable to issue a
               speeding citation.

                     For the foregoing reasons, it is hereby ORDERED that the
               Defendant’s motion to suppress is GRANTED.

                We begin our review by observing that “under both the federal and state constitutions,
a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result thereof
is subject to suppression unless the State demonstrates that the search or seizure was conducted
pursuant to one of the narrowly defined exceptions to the warrant requirement.” State v. Yeargan,
958 S.W.2d 626, 629 (Tenn. 1997). That is, a trial court necessarily indulges the presumption that
a warrantless search or seizure is unreasonable and the burden is on the state to demonstrate that one
of the exceptions to the warrant requirement applied at the time of the search or seizure. Id.

               Once the trial court has ruled on a suppression motion, our standard of appellate
review requires acceptance of the trial court’s findings regarding “[q]uestions of credibility of the
witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence,” unless
the evidence preponderates against the findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996);
State v. Cothran, 115 S.W.3d 513, 519 (Tenn. Crim. App.), perm. app. denied (Tenn. 2003). The
application of the law to the facts found by the trial court is, however, a question of law that is
reviewed de novo. Yeargan, 958 S.W.2d at 629; Odom, 928 S.W.2d at 23.

                 The state recognizes that a reasonable traffic stop can become unreasonable and
constitutionally invalid if the time, manner, or scope of the investigation exceeds the proper
parameters. See State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002). The state argues on appeal that
there was no evidence at the suppression hearing that the time, manner, or scope of the investigation
exceeded the proper parameters, and it cites Officer Cox’s testimony that he was not stalling in
completing the citation and that he took no longer than usual in filling out the citation. The state
further insists that no evidence was introduced showing that the information needed for the citation
was quickly and readily available to the officer, and the state points to Officer Cox’s testimony that


                                                 -5-
it took time to call the dispatcher to check for warrants and to question the defendant about his
height, weight, and year of his vehicle. As legal support for its argument, the state directs our
attention to the decisions in Illinois v. Caballes, ___ U.S. ___, 125 S. Ct. 834 (2005), United States
v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568 (1985), and United States v. Wellman, 185 F.3d 651 (6th
Cir. 1999).

                The state’s argument, in our opinion, is flawed in several respects. First, the trial
court made several credibility determinations in connection with the defendant’s and Officer Cox’s
testimony. The trial court found Officer Cox’s time estimation – 17 to 18 minutes between the stop
and the arrival of the drug dog – to be more reliable than the defendant’s estimation that it took the
officer about ten minutes to write the ticket. That determination by the trial court is eminently
reasonable and will not be disturbed on appeal. See Odom, 928 S.W.2d at 23. The trial court also
implicitly rejected Officer Cox’s testimony that he was not “stalling” in completing the citation and
that he took no longer than usual in filling out the citation. We are required to accept that credibility
determination as the trial court was in the best position to evaluate Officer Cox’s candor and because
the evidence does not preponderate against that determination. See id. Additionally, the trial court,
in our opinion, properly exercised common sense in examining the actual citation issued to the
defendant and concluding that “all of the information needed for the citation was quickly and readily
available to the officer.”2

                 Second, in terms of what the evidence did or did not show, the burden of proof
remained solidly on the state to demonstrate that one of the exceptions to the warrant requirement
applied at the time of the search or seizure. The burden never shifted to the defendant. For that
reason, the state’s complaint that the record is devoid of evidence that the traffic stop was extended
beyond the time necessary to issue the citation is not well taken. The defendant was not obligated
to prove that he was detained beyond the time necessary to accomplish the initial purpose of the
traffic stop for speeding. Instead, the state was obliged to show that the defendant was not detained
beyond the time necessary to complete the traffic stop.

                The state repeatedly attempts to justify the length of the detention in this case by
arguing that Officer Cox contacted the dispatcher to check on the existence of any outstanding
warrants for the defendant. The state, however, never elicited any evidence regarding how much
time elapsed until the dispatcher responded to the officer’s inquiry. Officer Cox testified that he
could not recall how long it took the dispatcher to get back to him with the information. Moreover,
the state offered no independent evidence, such as the dispatcher’s testimony or records, to establish
the time frame. Consequently, the state, in our opinion, failed to carry its burden of proof in
connection with the warrantless search and seizure that occurred in this case.




           2
               The citation issued by Officer Cox, which is Exhibit 1 in this record, is reproduced as an addendum to this
opinion.



                                                             -6-
               The last flaw in the state’s argument relates to its reliance on Caballes, Sharpe, and
Wellman. In Caballes, an Illinois State Trooper stopped the defendant for speeding, and when he
radioed the police dispatcher to report the stop, a second trooper overheard the transmission and
headed to the scene with his narcotics-detection dog. See Caballes, ___ U.S. at ___, 125 S. Ct. at
836. While the first trooper was in the process of writing a warning ticket, the second trooper
walked his dog around the defendant’s car. The dog then “alerted” at the trunk, and when the trunk
was searched, the troopers found marijuana. See id. According to the Supreme Court’s opinion,
“The entire incident lasted less than 10 minutes.” Id.

                The Supreme Court granted certiorari to consider whether the Fourth Amendment
requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle
during a legitimate traffic stop. See id. at ___, 125 S. Ct. at 837. The Court concluded that a dog
sniff performed on the exterior of the defendant’s car “while he was lawfully seized for a traffic
violation” did not rise to the level of a constitutionally cognizable infringement. Id. at ___, 125 S.
Ct. at 838.

                In connection with its decision, the Supreme Court was careful to point out the
following:

                         In the state-court proceedings, however, the judges carefully
                reviewed the details of Officer Gillette’s conversations with
                respondent and the precise timing of his radio transmissions to the
                dispatcher to determine whether he had improperly extended the
                duration of the stop to enable the dog sniff to occur. We have not
                recounted those details because we accept the state court’s conclusion
                that the duration of the stop in this case was entirely justified by the
                traffic offense and the ordinary inquiries incident to such a stop.

Id. at ___, 125 S. Ct. at 837. By contrast, in the instant case, no such evidence was introduced by
the state. The state relied entirely on Officer Cox’s assertions that he had not extended the duration
of the stop; the state offered no corroborating evidence. When, therefore, the trial court decided that
Officer Cox’s testimony was not credible on that point, nothing was left to consider.

               The decision in Sharpe simply stands for the proposition that no hard-and-fast time
limit exists beyond which a detention is automatically considered too long and, thereby
unreasonable. See Sharpe, 470 U.S. at 685-86, 105 S. Ct. at 1575. If anything, Sharpe underscores
the need for the state to offer evidence to enable the trial court to examine “whether the police
diligently pursued a means of investigation that was likely to confirm or dispel their suspicions
quickly during which time it was necessary to detain the defendant.” Id. at 686-87, 105 S. Ct. at
1575-76.

                Wellman involved a traffic stop based on speeding with a subsequent canine sweep
and alert for narcotics. The state is correct that the court in that case pointed out that “an officer can


                                                   -7-
lawfully detain the driver of a vehicle until after the officer has finished making record radiochecks
and issuing a citation, because this activity ‘would be well within the bounds of the initial stop.’”
Wellman, 185 F.3d at 656 (quoting United States v. Bradshaw, 102 F.3d 204, 212 (6th Cir. 1996)).
Wellman, however, involved the defendant’s appeal of the denial of his suppression motion, and the
court was reviewing the lower court’s findings, which included the officer’s explanation about the
delay in completing the traffic stop.

               Officer Jones testified that 15-20 minutes elapsed from the time he
               pulled over defendant’s motor home to the time of completion of the
               search of the vehicle. The delay occurred because Officer Jones was
               waiting for the central office to provide him with information on
               defendant’s driver’s license and vehicle registration. Officer Jones
               testified that he began the driver’s license and vehicle registration
               check before he asked for and received consent to search defendant’s
               vehicle and before Officer Lane detailed his drug-sniffing dog around
               the mobile home. He testified that the driver’s license and vehicle
               registration check had not been completed at the time of the search.

Id.

               Wellman, in our opinion, illustrates the fact-intensive nature of the suppression issue
and how the state’s burden regarding a warrantless search or seizure and the appellate standard of
review guide and determine the outcome. Wellman does not change the essential analysis or alter
how this court reviews the trial court’s factual findings and credibility determinations.

                 In summary, our review of the record reveals no evidence to preponderate against the
trial court’s finding that the defendant was illegally detained, without probable cause or reasonable
suspicion, after the reasonable time for issuance of a speeding citation had passed. Accordingly, we
affirm its ruling suppressing the narcotics and drug paraphernalia seized as a result and remand this
case for further proceedings consistent with this opinion.



                                                       ____________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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ADDENDUM




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