State v. Dennis England ( 1998 )

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.
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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
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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.
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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.
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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
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.
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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
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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).
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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.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JERRY L. SMITH, JUDGE
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