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An update: Big Defense Win: COA rejects state’s attempts to apply canine “instinct exception”

State v. Ashley Jean Campbell, 2020AP1813, 3/5/24, District 3 (recommended for publication); case activity

As a matter of first impression in Wisconsin, the court of appeals holds that regardless of whether the “instinct exception” exists, “the exception does not apply under the facts in this case to excuse the State’s obligation to obtain a warrant prior to searching Campbell’s vehicle.” Op., ¶5.  More specifically, the court concludes that the canine “did not instinctively enter Campbell’s vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver’s side door.” As a result, the court reverses Campbell’s judgment of conviction and remands with directions to grant her motion to suppress.

UPDATE: This post is being republished to reflect that, after the state filed a petition for review, the court of appeals withdrew its original decision and reissued the decision on March 5, 2024. As far as we can tell, the reissued decision, again recommended for publication, makes changes to three paragraphs in the original decision, all concerning the standard of review.

First, the court notes that “the clearly erroneous standard of review also applies when the record consists of disputed testimony and a video recording.” Op., ¶17 (citing State v. Walli, 2011 WI App 86, ¶17, 334 Wis. 2d 402, 799 N.W.2d 898). Second, the court applies the standard: “Here, the circuit court’s finding that the canine entered Campbell’s vehicle without any direction from Al-Moghrabi is clearly erroneous.” The court proceeds to explain that the dashboard camera video is clear that while Al-Moghrabi did not “command the canine to enter the vehicle…he permitted and facilitated its entry.” Op., ¶37. Third, the court adds a comment in support of its conclusion that Campbell’s case is distinguishable from the cases relied upon by the state: “The searches in this case are far from the type of situation that occurs when a canine freely breaks away from human control and investigates without assistance.” Op., ¶38.

The reissued decision is presumably a response to the state’s PFR, which called out the court of appeals for not applying the correct standard of review to the circuit court’s factual findings. What was implicit in the court’s original decision is now explicit: the circuit court’s factual finding that the canine entered Campbell’s vehicle “without any direction from law enforcement” is clearly erroneous. While the reissued decision may undercut one of the state’s PFR issues, it seems reasonable to assume our supreme court may be interested in deciding whether, and if so in what form, Wisconsin will recognize the canine “instinct exception.”

The basic facts are these. Upon initiating a traffic stop, a canine handler, Al-Moghrabi was called to the scene and asked Campbell to exit her vehicle. Campbell left her driver’s door open and Al-Moghrabi walked his canine around the vehicle. Al-Moghrabi kept his canine on a six-foot leash with a “pinch collar.” Consistent with the testimony and the dashboard video, Al-Moghrabi walked ahead of the canine around the vehicle and upon reaching the open driver’s door, Al-Moghrabi stopped and allowed the canine to enter the vehicle. The court notes that Al-Moghrabi blocked the canines’s from continuing its scan around the vehicle when the canine reached the open door.

The court further notes that Al-Moghrabi never pulled the leash or attempted to stop the canine from entering or searching within Campbell’s vehicle. Instead, Al-Moghrabi allowed the canine to enter Campbell’s vehicle twice, the first time for a total of 38 seconds, and the second time for a total of 15 seconds. Based on the canine’s intensive sniffing, Al-Moghrabi then seached Campbell’s vehicle and found marijuana. The circuit court denied Campbell’s motion to suppress relying on cases from other jurisdictions that applied the “instinct exception” because Campbell left her door open, the canine was on a “loose leash,” and because the canine entered the vehicle “without any direction from law enforcement.”

The court of appeals reverses after assuming the instinct exception exists under Wisconsin law because the canine’s searches of Campbell’s vehicle “would not fall under the instict exception as described in other jurisdictions’ case law.” Op., ¶36. First, the court holds that the canine did not act “instinctively” because Al-Moghrabi had full control of the canine and encouraged it to enter Campbell’s vehicle through the open door. The court relies on the fact that Al-Moghrabi stopped at the open door and allowed the canine to enter. In other words, the court faults Al-Moghrabi for failing to control his “highly trained law enforcement tool” rather than concluding that the canine was acting instinctively by entering Campbell’s vehicle.

Aside from the head scratching question of what exactly qualifies as instinctual for a well-trained canine officer or why a canine officer’s unwarranted entry into a vehicle should be the basis for an exception to the Fourth Amendment, it’s also somewhat confusing why the court of appeals would recommend publication of a decision that considers, but does not actually decide whether any such exception exists in Wisconsin. In any case, don’t be shocked if this isn’t the last we hear about this 2018 misdemeanor possession of THC case.


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