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Traffic Stop – Duration – Dog Sniff

State v. Dawn M. Fletcher, 2011AP1356-CR, District 3, 3/27/12

court of appeals decision (1-judge, not for publication); for Fletcher: Earl J. Luaders, III; case activity

The court upholds search of a car following a drug dog alert which occurred while an officer was still processing a warning ticket for a conceded traffic violation:

¶7        On appeal, Fletcher concedes the initial stop was lawful.  She argues the dog sniff was illegal because the officer had no reasonable suspicion to detain the occupants of the vehicle to request a dog sniff.  Her argument is foreclosed by Illinois v. Caballes, 543 U.S. 405, 410 (2005).  There, the United States Supreme Court held that a dog sniff conducted around a vehicle incident to a lawful traffic stop is not a search within the meaning of the Fourth Amendment.  Id. at 410; see also State v. Arias, 2008 WI 84, ¶42, 311 Wis. 2d 358, 752 N.W.2d 748.  As a result, Thornborrow did not need reasonable suspicion to request the dog sniff.  See State v. Miller, 2002 WI App 150, ¶10, 256 Wis. 2d 80, 647 N.W.2d 348.

¶8        Fletcher relies on State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296, 625 N.W.2d 623.[2]  However, her reliance on Gammons is misplaced because the facts of Gammons are totally different.  In Gammons, we determined a traffic stop became an unlawful detention when an officer continued to detain a vehicle after the purpose of the traffic stop had concluded.  Id., ¶24.  Here, Thornborrow requested the dog sniff during the course of the lawful traffic stop, and Prey arrived and promptly conducted the dog sniff before Thornborrow had finished writing the warning citation.  Because the dog sniff did not prolong the time it took Thornborrow to complete the original purpose of the stop, Fletcher was not unlawfully detained while Prey conducted the dog sniff.  See Caballes, 543 U.S. at 408, 410; Arias, 311 Wis. 2d 358, ¶42.

Where, Prey tell, is Aldo? As the court indicates, the 4th A doesn’t require that canines have a reason for sniffing a car. But Fletcher doesn’t argue, therefore the court need not say, that the police themselves require adequate cause to conduct a search following a dog sniff. Yes, a drug-detection dog’s alert will, if sufficiently reliable, supply that cause: how reliability must be demonstrated – what, exactly, the State must show to establish that the dog is “well-trained” – is at issue in Florida v. Harris, which you’ll want to follow closely if you’re involved in dog-sniff litigation. Of course, pursuit of a training day argument doesn’t preclude you from mounting the separate claim of an unreasonably prolonged detention.

(Neither here nor there: “Fletcher also cites two unpublished per curiam opinions for persuasive value.  These citations violate Wis. Stat. Rule 809.23(3)(b), which prohibits citation to unpublished opinions, except for authored opinions issued after July 1, 2009,” footnote 2. In the past, the court was almost certain to impose a sanction against counsel for such a violation. The court doesn’t do so here, but don’t assume it can’t- or won’t – next time it happens.)

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