State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison
Issue: whether extending a routine traffic stop by 78 seconds so that a dog could perform (without reasonable suspicion) a “drug sniff” amounted to an unlawful seizure.
¶34 … . There remains no hard-and-fast time limit for when a detention has become too long and therefore becomes unreasonable. Sharpe, 470 U.S. at 685-86; Griffith, 236 Wis. 2d 48, ¶54.
¶39 Under the totality of the circumstances before us, we examine the public interest, the degree to which the continued seizure advances the public interest and the severity of the interference of Arias’s liberty interest. Griffith, 236 Wis. 2d 48, ¶37. The dog sniff occurred so Rennie could ascertain whether there were drugs in Schillinger’s vehicle. In that regard, the public interest in “prevent[ing] the flow of narcotics into distribution channels” has long been recognized as significant. Place, 462 U.S. at 704. The use of a narcotics sniffing dog furthers this public interest by locating narcotics that may not otherwise be detected.  The dog sniff was part of the on-going traffic stop of Schillinger that occurred because she was a minor and was transporting alcohol that Arias had placed in her vehicle. The dog sniff of Schillinger’s vehicle took 78 seconds to further the public’s interest. This brief 78-second extension of Arias’s seizure is significantly outweighed by the importance of preventing the flow of illegal drugs. 
¶40 In addition, Rennie diligently pursued his investigation in a manner that could quickly confirm or dispel his suspicions relative to the stop of Schillinger’s vehicle. Sharpe, 470 U.S. at 686. He observed beer being loaded into a car that was driven by Schillinger, whom he knew was under age. He quickly sought to ensure that Schillinger was not intoxicated, first by administering a preliminary breath test to her and then by inquiring whether drugs were in the vehicle. He released D’Jango to sniff the outside perimeter of the car. All these tasks took only 4 minutes, 10 seconds to accomplish. Rennie’s actions were systematic and efficient. Arias was not taken to a non-public location as the defendant was inRoyer. He remained seated in the passenger compartment of Schillinger’s vehicle. Therefore, the incremental intrusion on Arias’s liberty is time-focused, as it was in Griffith. On balance, we conclude that the incremental intrusion upon Arias’s liberty interest that resulted from the 78-second dog sniff is outweighed by the public’s interest served thereby. Accordingly, Arias was not subjected to an unreasonable seizure.
¶47 In sum, we observe that neither the Fourth Amendment nor Article I, Section 11 of the Wisconsin Constitution prohibit all seizures. Only unreasonable seizures are violative of constitutional rights. In examining the reasonableness of Arias’s seizure, we balance the public’s interest in preventing the distribution of illegal drugs, the furtherance of that interest by the continued seizure of Schillinger’s vehicle and the effect on Arias’s liberty interest under the Fourth Amendment and Article I, Section 11 of the Wisconsin Constitution. SeeMimms, 434 U.S. at 109; Griffith, 236 Wis. 2d 48, ¶37. The incremental extension of time expended in this stop that was occasioned by the dog sniff was a brief 78 seconds. It was only the 78 seconds of the dog sniff that added to Rennie’s efficient efforts to confirm or allay his suspicions that led to the initial stop. This incremental liberty intrusion does not outweigh the public interest served by it; therefore, the incremental intrusion occasioned by the dog sniff satisfies our test for reasonableness. Griffith, 236 Wis. 2d 48, ¶38. Accordingly, the “controlled substance investigation” comported with the strictures of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.
Leading prior cases are: State v. Betow, 226 Wis.2d 90, 593 N.W.2d 499 (Ct. App. 1999); State v. Christopher Gammons, 2001 WI App 36; and State v. Daniel L. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996), which the court purports to reconcile with the current result by reducing Betow to dicta:
¶45 We note that Betow contains broad dicta that might be read so as to cause confusion with the appropriate inquiry for evaluating the constitutionality of a continuing seizure. For example, Betow asserts:
[T]he scope of the officer’s inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer’s attention——keeping in mind that these factors, like the factors justifying the stop in the first place, must be “particularized” and “objective.”
Id. at 94. This dicta misstates the manner in which courts are to evaluate the reasonableness of the continuation of a seizure that was lawful at its inception.Betow was clarified by Gaulrapp’s explanation that, “[n]o seizure occurs when police, without the reasonable suspicion justifying a Terry stop, ask questions of an individual . . . so long as the police do not convey that compliance with the request is required.” Gaulrapp, 207 Wis. 2d at 609. The dicta in Betow quoted above is also inconsistent with Bostick, which concludes that law enforcement questions do not result in a seizure, so long as answers are not compelled.Bostick, 501 U.S. at 437. As we have explained, the appropriate inquiry involves balancing the public interest in the seizure, the degree to which the continued seizure advances the public interest and the severity of the interference with the liberty interest of the person detained. Griffith, 236 Wis. 2d 48, ¶37.