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Court of appeals clarifies test for prolonging traffic stop to conduct dog sniff

State v. Katherine J. Downer Jossi, 2016AP618-CR, 8/24/16, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

This court of appeals decision acknowledges what On Point predicted here when SCOTUS issued Rodriguez v. United States, 135 S. Ct. 1609 (2015). That is, Rodriguez, which held that prolonging a traffic stop to conduct a dog sniff requires reasonable suspicion of criminal activity  beyond the traffic infraction, effectively overruled State v. Arias, 2008 WI 84, ¶32, 311 Wis. 2d 358, 752 N.W.2d 748, which allowed for a reasonable delay based on the totality of the circumstances (a.k.a. the “incremental intrusion” test).

In this case, the parties agree that Officer Olson lawfully stopped a car carrying Downer Jossi because it had an expired license plate. The problem is that while he was writing out a warning for failure to attach the rear registration decal he paused to conduct a dog sniff, which turned up heroin-related drug paraphernalia. Olson admitted that issuing a warning would normally take 8 to 12 minutes, but this stop took 15 to 20 minutes due to the dog sniff. The circuit court and court of appeals agreed that Olson lacked reasonable suspicion to prolong the stop. They also agreed that the exclusionary rule did not apply because Olson relied in good faith on Arias.

¶9 We agree with the circuit court that Olson was acting in objectively reasonable reliance on established Wisconsin precedent. Downer Jossi’s arguments to this court rely heavily on the Court’s decision in Rodriguez. Rodriguez, however, was decided on April 21, 2015, and the traffic stop in this case was conducted on January 23, 2015. Rodriguez clearly changed the state of the law in Wisconsin. Arias allowed for a reasonable delay based on the totality of the circumstances, Arias, 311 Wis. 2d 358, ¶38, while the Supreme Court in Rodriguez made clear that “a traffic stop ‘prolonged beyond’” the “time reasonably required to complete [the stop’s] mission” without reasonable suspicion is unlawful, Rodriguez, 135 S. Ct. at 1615-16 (citations omitted). “The critical question … is not whether the dog sniff occurs before or after the officer issues a ticket … but whether conducting the sniff ‘prolongs’—i.e., adds time to— ‘the stop.’” Id. at 1616. Thus, Rodriguez changed the analysis: instead of questioning whether the delay was reasonable we now only consider what is a reasonable amount of time to complete the purpose of the original seizure.

¶10 The pivotal fact is that Olson acknowledged that the traffic stop was prolonged because of the dog sniff. Rodriguez changed Wisconsin law as Arias’s allowance for a reasonable delay is no longer good law. State v. Kiper, 193 Wis. 2d 69, 80-81, 532 N.W.2d 698 (1995) (explaining that Wisconsin courts “consistently follow[] the United States Supreme Court’s interpretation of the search and seizure provision of the fourth amendment in construing the same provision of the state constitution” (citation omitted)). Olson, however, properly acted under Arias, and, therefore, the exclusionary rule does not apply. See Dearborn, 327 Wis. 2d 252, ¶¶36, 44.

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