Court: Dog drug sniff is constitutional search

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Suppose a U.S. Supreme Court precedent is squarely against you on a Fourth Amendment issue.

You can still argue that the search is unreasonable under the Wisconsin Con-stitution, right?

Not anymore.

Although the Wisconsin Supreme Court has, in recent years, been willing to interpret the state constitution more broadly in Fifth Amendment cases, a July 9 opinion by the court broadly proclaims it won’t be doing the same for search and seizure law.

Justice Patience Drake Roggensack wrote for the court, “By following the [U.S.] Supreme Court’s Fourth Amendment jurisprudence in interpreting Article I, Section 11, we impart certainty about what the law requires for those who will apply our decisions with respect to searches and seizures, and we provide distinct parameters to those who must enforce the law while maintaining the constitutionally protected rights of the people.”

The case involved the prosecution of Ramon Lopez Arias for carrying a concealed weapon, possession of a switchblade, and possession of cocaine with intent to deliver.

Drug-Sniffing Dog

In 2005, he was pulled over by police after an officer saw him place beer in a vehicle driven by a girl the officer knew to be only 17 (sec. 346.93 makes it illegal for a minor to drive a vehicle that contains intoxicants).

Despite the absence of reasonable suspicion of drug activity, the officer released a dog to sniff around the outside of the car, and the dog alerted to both the passenger and driver side of the car.

A subsequent search of the car and Arias resulted in the above charges.

Clark County Circuit Court Judge Jon M. Counsell granted Arias’ motion to suppress, and the Wisconsin Court of Appeals certified the case to the state Supreme Court.

The Supreme Court reversed, in a decision by Judge Patience Drake Roggensack.

The U.S. Supreme Court has previously held that a dog sniff of the exterior of a vehicle is not a search within the meaning of the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 410 (2005).

Nevertheless, Arias asked the court to hold the search unreasonable under Wisconsin’s analogue to the Fourth Amendment. However, the court declined to do so.

State, Federal Interpretation

The court acknowledged that it has, on occasion, interpreted a provision in the Wisconsin Constitution more broadly than the U.S. Supreme Court has interpreted the U.S. Constitution.

In both State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, and State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, the court interpreted Art. I., sec. 8 more broadly than the Fifth Amendment.

However, the court rejected Arias’ argument that it should do the same with respect to search and seizure law.

The court noted that the only time it has done so is in State v. Eason, 2001 WI 98, 245 Wis.2d 206, 629 N.W.2d 625. In that case, however, the court only rejected the good faith exception adopted by the U.S. Supreme Court; the case did not involve the substantive requirements for a lawful search.

Despite the broad ruling that the two constitutional provisions are coextensive, the court nevertheless proceeded to state why it would not fashion an exception to the general rule, based on the facts in the case.

The court also found that the duration of the search (78 seconds) was not so long as to unconstitutionally prolong the seizure.

Dissent Finds Unconstitutional

Justice Ann Walsh Bradley dissented, in an opinion joined by Chief Justice Shirley S. Abrahamson, and Justice Louis B. Butler, Jr.

The dissent concluded that the dog sniff was unconstitutional, because its purpose — detecting drugs — was wholly unrelated to the circumstances justifying the initial stop —– transportation of beer by a minor.

The dissent also found Caballes distinguishable; in that case, the sniff occurred as a citation was being issued, and thus, did not expand the scope of the search at all. Here, in contrast, the dog sniff occurred after the officer determined the driver was not intoxicated.

Justice Bradley wrote, “It is not always politically well-received when you have the goods — the drugs — on the defendant and yet suppress that evidence based on the state and federal constitutions. Judges make those tough calls because of their commitment to the rule of law and adherence to their oath of office. We expect no less of them.

“Those same judges have a right to expect of us that when their case is appealed and we review it, that we neither misconstrue their findings of fact nor their rationale.

Unfortunately, the majority here does both.”