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Extension of traffic stop to conduct dog sniff deemed reasonable

State v. Jordan Branovan, 2016AP622-CR, 10/5/16, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

leafHere’s a sure fire way for law enforcement to comply with Rodriguez v. United States, 135 S.Ct. 1609 (2015): summon a K-9 officer before initiating a traffic stop in order to minimize the extension of it. That’s what Officer Heinen did here once he saw that Branovan was not wearing a seat belt but was wearing a hat with what looked like a multicolored pot leaf on it. Four and half minutes later, the K-9 officer arrived on the scene, conducted a sniff, which led to the discovery of THC and drug paraphernalia.

flowerBranovan did not contest the initial stop. He argued that it should not have taken Officer Heinen longer than 5 minutes to issue citations for failure to wear a seat belt–especially since there was zero evidence that Branovan and his passenger had been drinking or using drugs. And that pot leaf–it was a Hawaiian flower. Under Rodriguez, 135 S. Ct. at 1614, once the tasks tied to the traffic infraction are completed, or within the time it should have reasonably taken to complete them, the authority for the seizure ends.  According to the court of appeals, Officer Heinen was still engaged in legitimate tasks when the dog sniff occurred. Therefore, the seizure was not unreasonably prolonged.

¶12 . . . Heinen was still in the process of completing the “mission” of his seizure of Branovan’s vehicle—to address seat belt violations—when the dog sniff occurred. Contrary to Branovan’s contention, this mission included more than just issuing a citation to Branovan and his passenger. The tasks of checking the identification of Branovan and his passenger, and running a check for their criminal history and outstanding warrants, if any, were reasonably related to the scope of stopping Branovan and his passenger for seat belt violations. It is of no constitutional significance that Heinen called for Schiller and his dog before initiating the stop. A dog sniff of the exterior of an automobile while in a public place is not a search. See State v. Salonen, 2011 WI App 157, ¶9, 338 Wis. 2d 104, 808 N.W.2d 162. Further, the police “may conduct certain unrelated checks during an otherwise lawful traffic stop,” such as a dog sniff, so long as it is not done “in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Rodriguez, 135 S. Ct. at 1615

¶13 Branovan complains that the video depicts that for two minutes Heinen is just sitting in his squad car not doing anything but simply waiting for the arrival of Schiller. The testimony, however, was that Heinen was in contact with dispatch, relaying the identification information he had obtained from Branovan and his passenger so that he could discover whether they had any outstanding warrants or criminal history. The video is consistent with Heinen’s testimony. At three minutes and twenty seconds into the video, after Heinen speaks with Branovan and his passenger, Heinen returns to his squad car. At three minutes and thirty-three seconds and continuing for another approximately fifty seconds, Heinen relays the identifying information for Branovan, his car, and his passenger to dispatch. Immediately after doing so, Heinen starts talking with Schiller. Thus, contrary to Branovan’s contention, there was no two-minute delay. Relatedly, Branovan argues that “the traffic stop could have ended in less than five minutes,” but there is nothing in the record to support such a conclusion. Rather, the record shows that Heinen pursued his “traffic-based inquiries expeditiously,” and the dog sniff did not add time to the stop. Id. at 1616.

 

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