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Dog sniff and search of car were unlawful because officer unreasonably extended the duration of the stop

State v. Kenneth C. House, 2013 WI App 111; case activity

House was stopped for operating with a suspended registration. After running House’s license and learning he was on probation for a drug offense, the officer returned House’s license and issued him a warning for the suspended registration. The officer then retrieved his police dog who, after sniffing around the vehicle, alerted on the driver and passenger doors. The officer searched the passenger compartment of the car, but found nothing; he then opened the trunk and found marijuana. Under State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748, the sniff and search of the car were unlawful because they were not reasonably related to the purpose of the stop:

¶7        …[I]n Arias, prolonging an ongoing traffic stop for seventy-eight seconds to conduct a dog sniff was not an unreasonable intrusion when weighed against the public interest in deterring the flow of narcotics. By contrast, in State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999), the seizure attendant to the dog sniff “was unreasonable under the totality of the circumstances presented … because Betow’s traffic stop for speeding had been concluded when the officer asked if he could search Betow’s vehicle.” Arias, 311 Wis. 2d 358, ¶43. Similarly, in State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296, 625 N.W.2d 623, “the reason for the initial seizure had been satisfied, the driver and the two passengers had provided identification, the officer had run computer checks on all three, the officer asked to search the vehicle and the driver had refused.” Arias, 311 Wis. 2d 358, ¶46 (citations omitted). The seizure and attendant dog sniff became an unlawful detention when the officer continued to detain the vehicle after the purpose of the traffic stop had concluded.  Id.

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¶9        Here, unlike in Arias, the dog sniff attendant to House’s seizure occurred after Hoell had completed everything related to the initial stop. Hoell ran House’s license and conducted the dog sniff after he gave House back his license and issued him a warning. See State v. Jones, 2005 WI App 26, ¶22, 278 Wis. 2d 774, 693 N.W.2d 104 (traffic stop ended with the issuance of the warning citation and return of the defendant’s and the driver’s identification cards).

¶10      Here, the undisputed facts establish that the reasons justifying the initial stop ceased to exist because the purpose of the stop had been resolved…. Therefore, Hoell’s continued detention of House to conduct the dog sniff was not reasonably related in scope to the circumstances justifying the stop. Because Hoell gave House no choice in the matter when he conducted the dog sniff, a reasonable person in House’s place would not have felt free to leave. State v. Williams, 2002 WI 94, ¶22 n.6, 255 Wis. 2d 1, 646 N.W. 2d 834 (an individual is unlawfully seized if a reasonable person in his or her position would not feel free to leave or to decline the officer’s further requests).

The court also notes (¶10 n.2) that the officer decided to have his dog sniff the car after he learned House was on probation for a drug offense, but House’s probation status alone doesn’t provide reasonable suspicion to broaden the traffic stop. Betow, 226 Wis. 2d at 95 n.2.

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