The State Court of Appeals this week rejected a request that the court recognize the so-called canine "instinct exception" to the U.S. Constitution's Fourth Amendment warrant requirement.
The exception, which is recognized in some states, "allows canine searches that naturally extend into a vehicle during a traffic stop ... if the canine conducts the search 'instinctively' and without an officer’s direction, assistance, or encouragement," Appellate Judge Gregory Gill Jr. wrote for the three-member District III Court of Appeals panel.
The court, in reversing a ruling by Sawyer County Circuit Judge John Yackel, did not say the exception might never apply; it said instead that even if the state recognized the exception, the canine search of Ashley Campbell's car did not meet its requirements.
"Here, the canine did not instinctively enter Campbell’s vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver’s side door," Gill wrote.
He was joined in the opinion by Appellate Judges Lisa Stark and Thomas Hruz.
A state trooper stopped Campbell for traffic violations in 2017. The trooper contacted Sawyer County Sheriff’s Sgt. Nick Al-Moghrabi for assistance and checked Campbell's driving record. He found her license was suspended for failing to pay a forfeiture.
When the trooper ordered the Campbell and her passenger out of the car, Campbell left the driver's side door open.
Al-Moghrabi conducted a canine search of the car. He allowed the dog, named Trace, to "scan" the car, meaning the dog could sniff the outside of the vehicle on its own, without the sergeant's direction or command.
But when he got to the driver's side door, Al-Moghrabi stopped and let Trace get into the vehicle. The sergeant positioned his own body so it blocked the dog from continuing the scan, Gill said. Dashboard cam video showed that Al-Moghrabi did not pull on the leash to get Trace out of the car. In total, Trace was in the car about 38 seconds.
During that time, Al-Moghrabi testified at a suppression hearing, Trace was sniffing intently at a purse on the floor.
The dog eventually did get out, and Al-Moghrabi walked it around the car and back to the driver's side door.
"Al-Moghrabi’s actions mirrored his conduct during the first entry," Gill wrote. "That is, he walked the canine up to the door’s opening, stopped and allowed the canine to enter the vehicle, and kept his body between the canine and the rear of the vehicle."
This time Trace was in the car about 15 seconds and Al-Moghrabi again did not pull on the leash. He testified later that, again, the dog was interested in the purse.
Al-Moghrabi retrieved and opened the purse. Campbell eventually was charged with possession of marijuana and possession of drug paraphernalia. She pleaded no contest to the possession charge and the paraphernalia charge was dropped. She was assessed $673.50 in fines and costs.
Yackel adopted the "instinct exception" when he ruled against Campbell's
suppression motion, Gill wrote. The lower-court judge said the exception applied " 'when a [canine] jumps instinctively through an open car door without any facilitation by its handler,'” Gill said.
The dog's entry into Campbell's car was a search under the Fourth Amendment, Gill said.
"There is uncontroverted evidence that the canine — a trained member of law enforcement — twice entered Campbell’s vehicle as opposed to staying at its exterior," Gill wrote.
And there was no reason to believe Campbell or her passenger had any drugs before the dog got in the car, he said.
"Because law enforcement did not have the requisite probable cause for the first search of the vehicle’s interior, it could not use the information gained from that search to form a constitutional basis for the second search," he said.
While courts have disagreed on the level of suspicion needed for such a canine search, they have "consistently required the government to demonstrate that law enforcement did not assist, facilitate, or create an opportunity for the canine to enter the vehicle’s interior," he wrote.
In this instance, even if the instinct exception exists in Wisconsin, it did not cover Trace's entry into Campbell's car.
"Al-Moghrabi had full control of the canine and he encouraged it to enter into Campbell’s vehicle through the vehicle’s open door," Gill wrote.
Al-Moghrabi stopped at the open door and let the dog enter the vehicle. The sergeant positioned his body so it blocked the dog's ability to continue the exterior scan.
The dog went to training that included obedience training, but Al-Moghrabi did not try to pull on the dog's leash to get it to leave the vehicle.
There also was "no evidence at the suppression hearing that he verbally instructed the canine —a highly trained law enforcement tool — to get out of the vehicle," Gill wrote. The second search occurred under nearly identical circumstances as the first, he said.
"Thus, we cannot conclude as a matter of law that, under these facts, that the instinct exception applies." he said.
Campbell was represented on appeal by Assistant Public Defender Colleen Marion. The state was represented by Sawyer County District Attorney Bruce Poquette.
The full decision in 20AP1813, State v. Ashley Jean Campbell, is here.
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