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Appeals court reverses drug-sniffing dog decision

Appeals court reverses drug-sniffing dog decision

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When Mequon patrol officer John Hoell returned Kenneth House’s driver’s license and issued a warning for driving a car with expired registration, House’s roadside seizure should have stopped right then, according to the Wisconsin Court of Appeals in State of Wisconsin v. Kenneth C. House, 2012 AP 2414.

Instead, Hoell brought in a drug-sniffing dog, which extended the seizure at least another seven to 10 minutes. That violated state and federal 4th Amendment protections against unreasonable search and seizure, according to the three-judge panel that reversed and remanded the Jan. 12 decision of Ozaukee County Circuit Judge Paul Malloy.

After the dog searched House’s passenger area, Hoell opened the trunk and found a bagged “green, leafy substance” later shown to be marijuana, and House was charged with possession with intent to distribute as a second offense.

Relying primarily on State v. Arias, 2008 WI 84, the appellate court emphasized that the stop should last no longer than necessary to effectuate the purpose of the stop.

According to court records, House was traveling on Interstate 43 north of Mequon when he was pulled over on suspicion of driving on a suspended registration. House explained that it was not his car. When the officer ran his driver’s license, he found that House was on probation for possession of a controlled substance.

Two minutes had elapsed from the time House was pulled over to when Hoell returned to his squad car with House’s license. Another seven minutes passed before the officer returned to House’s vehicle and asked him to step out of the car.

After patting House down, Hoell gave back his license and proof of insurance, and issued a written equipment warning. According to the appellate court, this is where the stop should have ended. However, even Hoell testified at the suppression hearing that House would “not have felt free to go” after he returned the license.

Instead, Hoell brought the canine unit back to the car a minute later and asked House to step out of the car to allow a search. The dog appeared to detect a scent on the driver- and passenger-side doors, but a search of the passenger area revealed nothing. Hoell used the driver’s keys to open the trunk, where he found a bagged “THC-like” substance later determined to be marijuana.

House was charged with felony possession of THC and possession with intent to distribute, second offense. The defendant failed to get the THC excluded at a motion to suppress, where officer Hoell was the only witness to testify. Six months later, a jury failed to reach a unanimous decision on either charge, and House entered an Alford plea to possession as a second offense in May 2012.

House’s appeal focused on two key areas: that the stop was unlawfully extended by the drug sniff and that a drug sniff was inherently too unreliable to act as a basis to form probable cause.

The appellate court relied on principles in Arias to help determine whether House’s seizure was lawful, namely: whether the seizure was justified at its inception and whether the officer’s actions were “reasonably related in scope to the circumstances which justified the stop in the first place.”

House didn’t argue that he was wrongfully pulled over in the first place. His primary objection was that the stop appeared to be extended because Hoell discovered that House was on probation for possession.

The state never argued that House’s probationary status for possession of a controlled substance was a sufficient basis to extend the stop. However, the lack of other reasons presented for the extended stop appeared to give the court little leeway.

A drug sniff is not a “search” under either state or federal law, so the preliminary “hit” on the driver- and passenger-side doors alone was not a sufficient basis to justify further detention and search.

In reviewing the appropriateness of the drug sniff, the appellate court referenced the Arias court’s reliance on separating the lawfulness of a drug sniff into two categories: one that is part of an ongoing stop and a second where dog sniffs take place after the purpose of the underlying stop has concluded.

The Arias case involved a drug sniff which extended the traffic stop by 78 seconds. That court found that the extension of time Arias was delayed was reasonable when balanced against the significance of the public interest in reducing drug activity.

The appellate court in House’s case likened the current case more factually to State v. Betow, 226 Wis. 2d 90, however, where a dog sniff resulting in drugs seized after the driver was pulled over for speeding. The search in Betow was deemed unreasonable because the preliminary search due to speeding was over, and only later did a second officer ask to search Betow’s vehicle unrelated to the original stop.

“Here,” concluded the court, “the undisputed facts establish that the reasons justifying the initial stop ceased to exist”, and the purpose of the stop had been resolved.

As a second argument, House’s attorney further argued that a drug sniff was too unreliable to serve as the basis of probable cause, because a sniff often failed to differentiate between the actual presence of contraband and the scent of contraband that could filter into a vehicle from the surrounding environment. However, because the appellate court reversed on the basis of the length of House’s stop, it declined to rule on the admissibility of a drug sniff.

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