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Search & Seizure – Applicability of Exclusionary Rule – Dog Sniff

State v. Tina M. Miller, 2002 WI App 150, PFR filed 6/3/03
For Miller: Timothy A. Provis

Issue/Holding:

¶6. The Supreme Court first addressed whether the Fourth Amendment applies to canine sniffs in United States v. Place, 462 U.S. 696 (1983). … The Court then concluded “that the particular course of investigation that the agents intended to pursue here-exposure of respondent’s luggage, which was located in a public place, to a trained canine-did not constitute a `search’ within the meaning of the Fourth Amendment.” …

¶8. Miller does not discuss Place or Garcia but rather argues that a conclusion in her favor is dictated by City of Indianapolis v. Edmond, 531 U.S. 32 (2000). … Although the Court held that the program was unconstitutional, its holding had nothing to do with the use of drug-sniffing dogs, but resulted because vehicles were being stopped, i.e. “seized,” without reasonable suspicion. … Miller’s car did not need to be stopped in order to conduct a dog sniff, so Edmond does not apply. …

¶9. We therefore conclude that under the Supreme Court’s interpretation of the Fourth Amendment, dog sniffs are not searches. …

¶10. Because current law does not classify canine sniffs as searches within the meaning of the Fourth Amendment, Forbes was not required to have probable cause or reasonable suspicion before walking a dog around Miller’s vehicle for the purpose of detecting drugs in the vehicle’s interior.

Also see, Illinois v. Caballes, 03-923, 1/24/05 (upholding sniff of car without reasonable suspicion during lawful traffic stop), on remand: People v. Caballes, IL SCt No. 91547, 5/18/06 (challenge rejected under state constitution, albeit by closely divided vote). The Court stressed that the question before it “is narrow,” i.e., whether reasonable suspicion is required before a drug-detection dog can be used during a legitimate traffic stop; the Court answers, no: “the use of a well-trained narcotics-detection dog — one that “does not expose noncontraband items that otherwise would remain hidden from public view,” Place, 462 U.S., at 707 — during a lawful traffic stop, generally does not implicate legitimate privacy interests.”

Note that Caballes implicitly supports suppressiion of the results of a dog-sniff on account of an unlawful detention:

Here, the initial seizure of respondent when he was stopped on the highway was based on probable cause, and was concededly lawful. It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v. Jacobsen, 466 U.S. 109, 124 (1984). A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.

Dog-sniff litigation, then, is likely to focus on the detention, which will often turn on whether it was unreasonably prolonged (as to latter, case summaries may be found, here).

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