STATE of Wisconsin, Plaintiff-Appellant, v. Ramon Lopez ARIAS, Defendant-Respondent.
No. 2006AP974-CR
Supreme Court of Wisconsin
Decided July 9, 2008
2008 WI 84 | 752 N.W.2d 748
Oral argument November 1, 2007.
¶ 1. PATIENCE DRAKE ROGGENSACK, J. This case comes before us by certification from the court of appeals. Ramon Arias (Arias) was charged with one count of carrying a concealed weapon, contrary to
¶ 2. After a preliminary hearing, the circuit court granted Arias‘s motion to suppress the weapon and the drugs obtained pursuant to the search conducted following a police dog‘s sniff of the exterior of the vehicle in which Arias was a passenger. The State appealed the order suppressing the evidence, and the court of appeals certified two issues to this court: (1) “whether, under the Wisconsin Constitution, a dog sniff of a stopped vehicle is a ‘search’ “; and (2) “whether the vehicle stop was unreasonably prolonged in duration by the officer‘s controlled substance investigation.”2 In its certification, the court of appeals explained:
Here, the period of time to consider is the time consumed by the officer asking drug questions and preparing to release the dog, and then by the dog sniff itself. As we set forth above, the videotape shows that this period was approximately one minute and eighteen seconds.
¶ 3. We answer both certified questions in the negative. First, we conclude that a dog sniff of the exterior of a vehicle located in a public place does not constitute a search under the Wisconsin Constitution.
I. BACKGROUND
¶ 4. On August 20, 2005, Rennie, accompanied by his police dog, D‘Jango, sat in his police cruiser located in the parking lot of a flower shop, running radar detection on Highway 13. While there, he observed Arias exit a grocery store with three 12-packs of beer and place them in a vehicle he knew belonged to Megan Schillinger (Schillinger). From his acquaintance with Schillinger, Rennie knew her to be 17 years of age. When Schillinger began driving the vehicle containing both the beer and Arias, Rennie stopped them because he believed that Wisconsin law prohibited minors from operating vehicles that contain intoxicants.3
¶ 6. The surveillance video taken from Rennie‘s squad car captures the activity of D‘Jango, who alerts by sitting, which is called a “pass holder.” D‘Jango appears on the video accompanied by Rennie. D‘Jango proceeds to the passenger side of the car, where he sits and barks. D‘Jango then gets up and jogs to the driver‘s side of the car, where he also sits and barks. The time that elapsed from Rennie‘s question about drugs to the completion of D‘Jango‘s sniff was one minute and 18 seconds. D‘Jango‘s sniff concluded four minutes and ten seconds after Rennie stopped Schillinger‘s vehicle.
¶ 7. As a result of what he perceived as D‘Jango‘s positive alert on the vehicle, Rennie instructed Arias to
¶ 8. Inside the car, Rennie found a plastic bag containing a powdery substance that Arias identified as “coke” stuck between the front seats. Rennie also found a switchblade knife that “popped out” when he placed his weight on the front seat. Both items belonged to Arias.
¶ 9. Officer Jason Bauer, who arrived on the scene in response to Rennie‘s call for back-up, handcuffed Arias and searched him again, for the officers’ safety. Rennie placed Arias in his squad car, removed the beer from Schillinger‘s car and told her that she was free to leave. The detainment concluded at approximately 11:27 p.m.
¶ 10. Rennie did not issue Schillinger a citation for transporting intoxicants as a minor until the next day. Rennie stated that he had drug evidence in his squad car that he wanted to deliver to the police station and that the encounter had led him to conclude that he “had a bigger concern with [Arias]” than in immediately issuing a ticket to Schillinger.
II. DISCUSSION
A. Standard of Review
¶ 11. “Whether police conduct constitutes a ‘search’ within the meaning of the [Wisconsin Constitution] is a question of law” subject to our independent review. State v. Miller, 2002 WI App 150, ¶ 5, 256 Wis. 2d 80, 647 N.W.2d 348. “The question [of] whether
¶ 12. Upon review of an order granting a motion to suppress evidence, we uphold the circuit court‘s findings of historic fact unless they are clearly erroneous. State v. Fonte, 2005 WI 77, ¶ 11, 281 Wis. 2d 654, 698 N.W.2d 594. A finding is clearly erroneous if “it is against the great weight and clear preponderance of the evidence.” State v. Sykes, 2005 WI 48, ¶ 21 n.7, 279 Wis. 2d 742, 695 N.W.2d 277 (quoting State v. Tomlinson, 2002 WI 91, ¶ 36, 254 Wis. 2d 502, 648 N.W.2d 367).
B. Search
¶ 13. Arias asks us to conclude that the dog sniff of the exterior of Schillinger‘s vehicle was a search within the meaning of Article I, Section 11 of the Wisconsin Constitution and that the officer lacked reasonable suspicion to conduct such a search. Article I, Section 11 is the state analogue to the Fourth Amendment and protects persons against unreasonable searches and seizures.4
¶ 15. Although the Supreme Court ruled that the 90-minute interlude between the detention of the luggage and the dog sniff was an unreasonably long seizure warranting suppression of the cocaine, the Court also concluded that the dog sniff did not constitute a search. Id. at 707. The Court reasoned that a dog sniff “discloses only the presence or absence of narcotics” and, accordingly, provides distinct limits on lawful private interests that can be revealed through a sniff. Id.
¶ 16. Place‘s conclusion that a dog sniff is not a search within the meaning of the Fourth Amendment was reinforced by Caballes. In Caballes, the defendant was stopped for speeding and, while the detaining officer issued a ticket for that offense, another officer who arrived at the scene separately permitted his dog to canvass the exterior of the defendant‘s car. Caballes,
¶ 17. Wisconsin courts have also addressed the question of whether a dog sniff constitutes a search. The court of appeals, in Miller, phrased the question presented as whether the “use of a drug-sniffing dog to detect the presence of marijuana inside Miller‘s car violated her rights under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.” Miller, 256 Wis. 2d 80, ¶ 5.
¶ 18. In Miller, the use of a dog sniff of the exterior of a vehicle followed the execution of a search warrant for a residence where police officers had found marijuana. Id., ¶ 2. Subsequent to the search of the residence, the officers checked the cars located nearby on the street, with the assistance of a narcotics detecting dog. Id., ¶ 3. The dog alerted three times to a particular car, and the officers found marijuana in the car. Id. In upholding the circuit court‘s denial of the defendant‘s motion to suppress, the court of appeals concluded that dog sniffs are not searches under the Fourth Amendment. Id., ¶¶ 4, 9. However, the court did not separately analyze the issue under Article I, Section 11 of the Wisconsin Constitution, and its actual holding addresses only the Fourth Amendment. Id., ¶ 10. Therefore, whether a dog sniff is a search under Article I, Section 11 remained an open question.
¶ 19. Generally, we have interpreted provisions of the Wisconsin Constitution consistent with the United
¶ 20. Historically, we have interpreted Article I, Section 11 of the Wisconsin Constitution in accord with the Supreme Court‘s interpretation of the Fourth Amendment. See, e.g., State v. Malone, 2004 WI 108, ¶ 15, 274 Wis. 2d 540, 683 N.W.2d 1; State v. Guzman, 166 Wis. 2d 577, 586-87, 480 N.W.2d 446 (1992); State v. Williams, 47 Wis. 2d 242, 249, 177 N.W.2d 611 (1970). Our coordination of Article I, § 11 with the Supreme Court‘s Fourth Amendment jurisprudence began long before we were required to follow the Supreme Court‘s Fourth Amendment jurisprudence by its decision in Mapp v. Ohio, 367 U.S. 643 (1961). For example, in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923), we excluded evidence that was obtained in violation of Hoyer‘s constitutional rights under Article I, § 11 of the Wisconsin Constitution, an interpretation consistent with the United States Supreme Court‘s use of the exclusionary rule under the Fourth Amendment. Hoyer, 180 Wis. at 412 (citing Amos v. United States, 255 U.S. 313 (1921)). State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, represents the only time we have
¶ 21. There are sound policy reasons for this consistency in our jurisprudence. By following the 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. Therefore, were we to conclude that a dog sniff of the exterior of a vehicle in a public place constitutes a search under Article I, Section 11, we would be undertaking a significant departure from the Supreme Court‘s Fourth Amendment jurisprudence in interpreting the right to be free of unreasonable searches under the Wisconsin Constitution.
¶ 23. Second, a dog sniff is much less intrusive than activities that have been held to be searches. Place, 462 U.S. at 707. When a dog sniffs around the perimeter of a vehicle, the occupant of the vehicle is not subjected to the embarrassing disclosure or inconvenience that a search often entails. Id. The dog sniff reveals only the presence or absence of narcotics, a contraband item. Id. Indeed, a dog sniff is unique as a means of detection because, as the Supreme Court has observed, a dog sniff gives limited information that is relevant only to contraband for which there is no constitutional protection. Id.
¶ 24. Arias asserts constitutional protection for a place, the area surrounding the outside of Schillinger‘s vehicle. However, the proscription against unreasonable searches contained within Article I, Section 11 of the Wisconsin Constitution is meant to protect people, not things or places, aside from their relationships to people affected by government action. See Katz v. United States, 389 U.S. 347, 351 (1967); Garcia, 195 Wis. 2d at 74. The protection afforded to people in relation to things and places is the expectation that
C. Seizure
¶ 25. The next question we must address is whether conducting the dog sniff unreasonably prolonged Arias‘s seizure. As we explained above, the federal and state constitutions protect persons against unreasonable searches and seizures.
1. Duration of the dog sniff
¶ 26. Before discussing the general legal principles that may be applied, or the parties’ positions in regard to whether the detention satisfies the constitutional standard of reasonableness, we must first resolve one predicate issue: By how much time did the dog sniff extend the traffic stop? Arias contends that the circuit court‘s conclusion that D‘Jango‘s sniff prolonged the stop by “approximately 38 minutes” is not clearly erroneous; and therefore, the dog sniff unreasonably prolonged his seizure. In contrast, the State argues that the circuit court‘s finding with regard to the extension of the stop is clearly erroneous. The State maintains that it was not the dog sniff that extended the stop, but rather the “probable cause of drug activity,” which the dog sniff generated, that extended the stop. Accordingly, the State contends that the actual time spent on the dog sniff is 78 seconds, because that is the time that elapsed between Rennie‘s question to Schillinger about whether the car contained drugs and the conclusion of D‘Jango‘s sniff. The State supports its contention that the 78 seconds is the proper focus by emphasizing that the court of appeals, in certifying the case, identified 78 seconds as the time for us to consider.
¶ 28. For example, when Rennie saw that D‘Jango had alerted to Schillinger‘s vehicle, he concluded that he had probable cause to search the vehicle and its occupants.7 Rennie first instructed Arias to exit the vehicle, and then he conducted a “pat-down” search of Arias. He applied the same process with Schillinger. He then searched the vehicle, finding cocaine and a switchblade knife inside. The discovery of contraband precipitated Arias‘s arrest. It is these activities, not the dog sniff, that occupied the latter 38 minutes of the detainment.8 Accordingly, it was clearly erroneous for the
2. General principles
¶ 29. As explained above, this constitutional challenge arises in the course of a traffic stop. Because a traffic stop deprives a detained individual of dominion over his or her person and vehicle, a traffic stop is a seizure. See Delaware v. Prouse, 440 U.S. 648, 653 (1979); Malone, 274 Wis. 2d 540, ¶ 24. Although it is universally accepted that a traffic stop constitutes a seizure, courts disagree over what level of proof is necessary to support a traffic stop. Some courts, for example, the Supreme Court in Knowles v. Iowa, 525 U.S. 113 (1998), and this court in Malone, have concluded that a traffic stop is an investigative detention. Investigative detentions, referred to as “Terry-stops,” are analyzed under a two-part inquiry to determine whether they pass constitutional muster. Terry v. Ohio, 392 U.S. 1, 19-20 (1968); Griffith, 236 Wis. 2d 48, ¶ 26.
¶ 31. Different constitutional interests are affected by a search,10 as compared with the interests affected by a seizure.11 See, e.g., Griffith, 236 Wis. 2d 48, ¶¶ 26-27. We note that when “the scope of” a search is reviewed, the focus is on where and how the search was conducted.12 See Terry, 392 U.S. at 19. Where and how the search was conducted are important factors by which to judge the invasiveness of a search because the constitutional right affected by a search is the privacy interests of the person searched. Katz, 389 U.S. at 361 (Mr. Justice Harlan, concurring).
¶ 33. Griffith presented a different type of challenge to the constitutionality of a seizure. Our inquiry there focused on “the incremental intrusion” that was occasioned by an officer‘s questioning Griffith to determine whether that intrusion was unreasonable. Griffith, 236 Wis. 2d 48, ¶ 4. Our concern was whether the duration of the investigative stop was unconstitutionally extended when the officer asked Griffith, a passenger in the stopped vehicle, to step outside of the vehicle and answer questions concerning who he was and where he was going. Id. We were not concerned with the means used to continue Griffith‘s seizure, as the Supreme Court was in Royer.
¶ 34. In evaluating the challenge Griffith presented, we employed a three-part14 test that focused on the reasonableness of the continued seizure:
Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.
Id., ¶ 37 (citation omitted).15 We reviewed the totality of the circumstances to determine whether the “questioning transformed the reasonable seizure into an
3. The parties’ positions
¶ 35. The parties do not dispute that the traffic stop falls under Knowles and Terry. We note that a “routine traffic stop... is a relatively brief encounter and ‘is more analogous to a so-called “Terry-stop” than to a formal arrest.‘”17 Knowles, 525 U.S. at 117. With
¶ 36. However, Arias contends that Rennie impermissibly extended the seizure by allowing D‘Jango to sniff the vehicle because the “dog sniff occur[red] outside the scope of the initial traffic stop.” Arias‘s brief, at 25. Therefore, he asserts that the time taken by the dog sniff transformed a reasonable and lawful seizure into an unreasonable and unlawful seizure. Stated otherwise, he contends that the dog sniff expanded the reason for the initial stop, when the expansion was not supported by reasonable suspicion of drug activity. He relies on State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999) and State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296, 625 N.W.2d 623.
¶ 37. The State asserts that State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996) should control our decision. It contends that Gaulrapp‘s explanation that it is the duration of time by which the traffic stop was extended that is controlling, not the subject matter of the question that is asked, which we should apply here by analogy to the dog sniff.
4. Reasonableness of the dog sniff
¶ 38. Succinctly stated, the question we must decide is whether the 78 second intrusion upon Arias‘s liberty that was caused by the dog sniff was reasonable. “Reasonableness... depends ‘on a balance between the public interest and the individual‘s right to personal security free from arbitrary interference by law officers.‘” Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)
¶ 39. Under the totality of the circumstances before us, we examine the public interest, the degree to which the continued seizure advances the public interest and the severity of the interference of Arias‘s liberty interest. Griffith, 236 Wis. 2d 48, ¶ 37. The dog sniff occurred so Rennie could ascertain whether there were drugs in Schillinger‘s vehicle. In that regard, the public interest in “prevent[ing] the flow of narcotics into distribution channels” has long been recognized as significant. Place, 462 U.S. at 704. The use of a narcotics sniffing dog furthers this public interest by locating narcotics that may not otherwise be detected.18 The dog sniff was part of the on-going traffic stop of Schillinger that occurred because she was a minor and was transporting alcohol that Arias had placed in her vehicle. The dog sniff of Schillinger‘s vehicle took 78 seconds to further the public‘s interest. This brief 78-second ex-
¶ 40. In addition, Rennie diligently pursued his investigation in a manner that could quickly confirm or dispel his suspicions relative to the stop of Schillinger‘s vehicle. Sharpe, 470 U.S. at 686. He observed beer being loaded into a car that was driven by Schillinger, whom he knew was under age. He quickly sought to ensure that Schillinger was not intoxicated, first by administering a preliminary breath test to her and then by inquiring whether drugs were in the vehicle. He released D‘Jango to sniff the outside perimeter of the car. All these tasks took only 4 minutes, 10 seconds to accomplish. Rennie‘s actions were systematic and efficient. Arias was not taken to a non-public location as the defendant was in Royer. He remained seated in the passenger compartment of Schillinger‘s vehicle. Therefore, the incremental intrusion on Arias‘s liberty is time-focused, as it was in Griffith. On balance, we conclude that the incremental intrusion upon Arias‘s liberty interest that resulted from the 78-second dog sniff is outweighed by the public‘s interest served thereby. Accordingly, Arias was not subjected to an unreasonable seizure.
¶ 41. Our conclusion is consistent with the discussion in Gaulrapp. In Gaulrapp, the court of appeals was faced with the contention that asking a question about drugs and firearms, without a reasonable suspicion that Gaulrapp possessed either, caused a lawful seizure to become constitutionally infirm. Gaulrapp, 207 Wis. 2d at 608. In its discussion, the court of appeals correctly noted that no seizure occurs when law enforcement asks a question without a reasonable suspicion justifying the question so long as an answer is not compelled. Id. at 609. The court then noted that it was “the extension of a detention past the point reasonably justified by the initial stop, not the nature of the questions asked, that [may] violate[] the Fourth Amendment.” Fourth Amendment rights. Id. Gaulrapp is in accord with numerous federal and state courts.20 Similarly to Gaulrapp, here the relevant inquiry is not whether a dog sniff was conducted, or a question was asked, but whether Arias‘s detention was unreasonably extended. Id.; see also, Florida v. Bostick, 501 U.S. 429, 437 (1991).
¶ 42. Arias contends that Caballes stands for the proposition that a dog sniff conducted without reasonable suspicion of drug possession is per se violative of the federal Constitution unless the dog sniff is conducted simultaneously with activities germane to what precipitated the traffic stop in the first instance. We disagree. We do not read Caballes so narrowly. Indeed, Caballes observes that a traffic stop may become unlawful if it is “prolonged beyond the time reasonably required to complete” the activities attendant to the stop. Caballes, 543 U.S. at 407. As we have stated above, the time taken to complete the traffic stop and the dog sniff were reasonable.
¶ 43. Furthermore, Arias‘s reliance on Betow and Gammons is misplaced. In Betow, the court of appeals concluded that Betow‘s continued detention after he
¶ 44. By contrast, the traffic stop of Schillinger was on-going when the dog sniff of the outside of the vehicle occurred; the dog was not placed inside of Schillinger‘s vehicle; Arias had not asked to leave and been required to remain. Accordingly, the incremental intrusion upon Betow‘s liberty was significantly greater than that which occurred here.
¶ 45. We note that Betow contains broad dicta that might be read so as to cause confusion with the appropriate inquiry for evaluating the constitutionality of a continuing seizure. For example, Betow asserts:
[T]he scope of the officer‘s inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer‘s attention-keeping in mind that these factors, like the factors justifying the stop in the first place, must be “particularized” and “objective.”
Id. at 94. This dicta misstates the manner in which courts are to evaluate the reasonableness of the con-
¶ 46. Gammons is also distinguishable from the totality of the circumstances presented here. In reversing the circuit court‘s refusal to suppress the evidence, the court of appeals in Gammons employed, in part, the dicta from Betow. Gammons, 241 Wis. 2d 296, ¶ 18. However, in examining the totality of the relevant circumstances we note that the reason for the initial seizure had been satisfied, id., ¶ 2; the driver and the two passengers had provided identification, id.; the officer had run computer checks on all three, id.; the officer asked to search the vehicle and the driver had refused, id., ¶ 3. Thereafter, the officer threatened the driver with the further detainment so that he could use a drug sniffing dog, id., and the driver then consented to the search of the vehicle, id.. Accordingly, the incremental intrusion upon Gammons‘s liberty interest was significantly greater than the intrusion upon Arias‘s liberty interest.
III. CONCLUSION
¶ 48. In conclusion, we answer both questions certified to us by the court of appeals in the negative. First, we conclude, in accordance with federal
By the Court. ----The order of the circuit court is reversed, and the cause is remanded to the circuit court for further proceedings. Following remand, if a party moves the circuit court to determine whether the dog sniff was sufficient to establish probable cause to conduct a search of Schillinger‘s vehicle, our decision does not preclude the circuit court from holding a hearing on such a motion, if the circuit court chooses to do so.
¶ 49. ANN WALSH BRADLEY, J. (dissenting). Our circuit court judges serve on the front line of the court
¶ 50. 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.
¶ 51. 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.
¶ 52. In addition, the majority advances a novel and problematic constitutional analysis. It fails to follow the test announced by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968), and instead substitutes a new test. Accordingly, I respectfully dissent.
I
¶ 53. There are two time periods relevant in the case. The first is the 78 seconds between the time Officer Rennie completed the breath analysis test with Schillinger and the time D‘Jango completed the sniff of the vehicle. The second time period is the 38-minute stretch (which includes the 78 seconds) between the completion of the breath analysis and the time Officer Rennie called in Schillinger‘s driver‘s license information to dispatch.
¶ 54. The majority concludes that the 78-second extension of the traffic stop during which the dog sniff occurred “is not an unreasonable incremental intrusion
¶ 55. I agree with the majority that the appropriate focus is the 78 seconds. However, I cannot join the majority‘s conclusion that the circuit court erred in determining that the dog sniff prolonged the detention by 38 minutes. Rather, the circuit court found that the stop was prolonged by 38 minutes but that the length of the canine sniff was only a small part of the 38 minutes. After the completion of the dog sniff, the constitutional analysis must rely upon an assessment of probable cause.
A
¶ 56. A threshold problem with the majority‘s analysis is that it misconstrues the circuit court‘s factual findings and its rationale. In its decision on Arias‘s motion, the circuit court focused on the fact that Officer Rennie did not request Schillinger‘s driver‘s license information until well after the dog sniff was conducted. This led the court to determine that the dog sniff had delayed the traffic stop. The court expressly found that the dog sniff accounted for “roughly one minute” (not all 38 minutes) of the extension of the seizure.
¶ 57. As a separate finding of fact, the circuit court determined that the stop was prolonged in total for approximately 38 minutes, that is, for the dog sniff and the subsequent questioning, search, and arrest. The court next concluded that there were no objective and articulable facts giving rise to a reasonable suspicion of illegal activity justifying the entire extension:
Were there other objective and articulable facts that would give the officer a reasonable suspicion that either Ms. Schillinger or the defendant had been engaged in illegal activity allowing an extension of the stop? The court concludes no.
¶ 58. In other words, the circuit court did not make a finding that the dog sniff alone extended the traffic stop by 38 minutes. Rather, it made a determination that the traffic stop was extended by 38 minutes without reasonable suspicion, and that part of the extension included the dog sniff.
¶ 59. Thus, the majority has attributed a factual finding to the circuit court that the circuit court did not make. This misconstruction of the circuit court‘s decision leads to a void in the majority opinion. It has determined that a 78-second extension for a dog sniff is not unreasonable. However, it has not analyzed whether the rest of the 38-minute extension is reasonable.
¶ 60. The closest the majority comes to an explanation is its statement that the remainder of the 38-minute extension is attributable to activities other than the dog sniff. Id., ¶ 27. However, it does not explain why it matters what activities filled the 38 minutes. The ultimate issue in this case is whether the extension of the traffic stop can be justified regardless of what activities took place during the extension.
¶ 61. In other words, the majority has misconstrued the circuit court‘s rationale. The circuit court‘s reasoning was based on whether a 38-minute extension of a traffic stop without reasonable suspicion was justified. It was not premised on the entire 38 minutes being occupied by the dog sniff.
¶ 62. I cannot endorse the majority‘s conclusion that the circuit court clearly erred. The circuit court did
B
¶ 63. Nonetheless, I agree that the appropriate focus for this court is the 78 seconds of the dog sniff. On one hand, if the dog sniff established probable cause, then the extension of the traffic stop without reasonable suspicion was only 78 seconds. On the other hand, if the dog sniff did not establish probable cause, the circuit court is correct that there was an impermissible 38-minute extension of the traffic stop without “objective and articulable facts that would give the officer a reasonable suspicion that either Ms. Schillinger or the defendant had been engaged in illegal activity allowing an extension of the stop.” However, if the dog sniff failed to establish probable cause, then the search of the vehicle was impermissible on that basis (in addition to an unreasonable 38-minute extension of the traffic stop).
¶ 64. In Wisconsin, a dog alert can provide probable cause for a search only where “the dog is trained in narcotics detection and has demonstrated a sufficient level of reliability in detecting drugs in the past and the officer with the dog is familiar with how it reacted when it smelled contraband.” State v. Miller, 2002 WI App 150, ¶ 12, 256 Wis. 2d 80, 647 N.W.2d 348.
¶ 65. The circuit court‘s decision in this case was based on its determination that the extension of the traffic stop was not based on reasonable suspicion. It never made a determination that the dog sniff estab-
¶ 66. Arias argues to this court that the dog sniff here did not establish probable cause. He argues that D‘Jango is not sufficiently reliable for his alerts to establish probable cause.1 In addition, Arias argues that the circuit court never made a finding of fact that D‘Jango actually alerted on Schillinger‘s car.2 Upon remand the circuit court will have an opportunity to address the issue of probable cause.3 See mandate of the court following majority op., ¶ 48.
II
¶ 67. The second reason that I cannot join the majority is that its constitutional analysis is problematic. It fails to apply the second part of the two-prong test set forth in Terry v. Ohio, 392 U.S. 1 (1968). Accordingly, its approach conflicts with precedent of the United States Supreme Court as well as precedent from this state.
¶ 68. The majority sets forth the correct test for determining whether an extension of a traffic stop is constitutional. First, a court must determine whether the seizure was justified at its inception, and second, it must determine whether the extension of the seizure “was reasonably related in scope to the circumstances which justified the interference in the first place.” Majority op., ¶ 30 (quoting Terry, 392 U.S. at 19-20. As the majority notes, the parties agree that the initial seizure was justified at its inception. Majority op., ¶ 35. So far, so good.
¶ 69. Inexplicably, however, rather than applying the second part of the test set forth-whether the extension of the seizure “was reasonably related in scope to the circumstances which justified the interference in the first place“-the majority changes the test. It states that “the question we must decide is whether the 78-second intrusion upon Arias‘s liberty that was caused by the dog sniff was reasonable.” Majority op., ¶ 38. What happened to the rest of the test? The
¶ 70. The circumstances that justified the initial seizure in this case were Officer Rennie‘s reasonable suspicion that a minor was transporting beer. However, the majority makes no attempt to explain how the extension of the seizure in order to conduct a dog sniff for drugs reasonably relates to those circumstances. Instead, it simply concludes that because the public has a significant interest in curbing narcotics distribution, a brief extension of the seizure is reasonable. Id., ¶ 39.
¶ 71. The failure to apply the test set forth is crucial to the majority‘s conclusion. The extension of the seizure in this case is wholly unrelated to the circumstances that justified the initial seizure. Extending the traffic stop to deploy a drug-sniffing dog is not related in the slightest to transportation of beer by a minor. Thus, the extension of the seizure is not “reasonably related in scope to the circumstances which justified the interference in the first place,” and is therefore unconstitutional.
¶ 72. Supreme Court precedent on this matter is clear. In Florida v. Royer, the Court was adamant that “[a]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” 460 U.S. 491, 500 (1983). In addition to being circumscribed in time, the Court stated that the “scope of the detention must be carefully tailored to its underlying justification.” Id. There is no question that detention here lasted “longer than [was] necessary to effectuate the purpose of the stop,” namely investigating whether Schillinger was transporting beer. Similarly, the scope of the detention was not carefully tailored to its underlying justification. Rather,
¶ 73. The approach taken by the majority is also contrary to United States v. Caballes, 543 U.S. 405 (2005). In that case, while one officer was writing a warning ticket during a traffic stop, another officer walked a drug-sniffing dog around the defendant‘s vehicle. Id. at 406. The Court was explicit that a seizure justified by the interest of issuing a citation can become unlawful when expanded beyond the time reasonably required to issue the citation. Id. at 407. Because the dog sniff in Caballes occurred as the citation was being issued, there was no expansion. In contrast, the dog sniff here took place separately from the measures necessary to investigate a minor transporting beer.
¶ 74. The majority opinion also conflicts with Wisconsin precedent. In State v. Betow, an officer stopped Betow for speeding. 226 Wis. 2d 90, 92, 593 N.W.2d 499 (Ct. App. 1999). The officer checked Betow‘s license and registration and asked for permission to search the car. Betow refused, but the officer detained him in order to deploy a drug-sniffing dog. Id., 92-93. The court of appeals determined that a valid traffic stop may be extended if “the officer becomes aware of additional suspicious factors which are sufficient to give rise to an articulable suspicion that the person has committed or is committing an offense” other than the one giving rise to the initial stop. Id. at 94. Because there were no such factors present in Betow, the court of appeals determined that extension of the seizure was unlawful.
¶ 75. Following Betow requires a determination that the extension of the seizure in this case was unconstitutional. The State has presented no argument
¶ 76. The majority attempts to distinguish Betow on the ground that the traffic stop in that case had concluded and Betow refused the officer‘s request to search the car. Majority op., ¶ 43. The majority does not explain how it is able to divine that the traffic stop in Betow had been concluded when the officer extended the seizure. Betow was still detained and there is no indication in Betow that the officer had returned his license and registration. Contrary to the majority‘s assertion, the problem in Betow is that the traffic stop for speeding had not been concluded.
¶ 77. Moreover, the fact that Betow refused a request fails to explain the majority‘s view that the extension of the search in that case was impermissible and the search in the present case was permissible. Schillinger and Arias were not given the opportunity to refuse the search. Officer Rennie retained Schillinger‘s license and registration and simply conducted the search.
¶ 78. In State v. Gammons, a police officer performed a traffic stop for a missing rear license plate. 2001 WI App 36, ¶ 2, 241 Wis. 2d 296, 625 N.W.2d 623. After checking the driver‘s license and registration, the officer asked to search the vehicle, and the driver refused. Id., ¶ 3. When the officer stated that he was going to have a dog sniff the vehicle, the driver acquiesced to a search. Id.
¶ 79. The court of appeals determined that the initial stop in Gammons was permissible. Id., ¶ 7.
¶ 80. Gammons dictates the outcome in this case. As in Gammons, the search here was extended beyond the time necessary to complete the initial stop, and the extension was not at all related to the circumstances justifying the initial interference.
¶ 81. The majority states that Gammons is distinguishable from the present case on the ground that the driver acquiesced to a search because “the officer threatened the driver with further detainment so that he could use the drug sniffing dog.” Majority op., ¶ 46. Apparently, the majority thinks that the incremental intrusion upon liberty resulting from the threat of further detainment is greater than the incremental intrusion on liberty of actual further detainment to deploy a drug sniffing dog. That view is untenable.
¶ 82. Although the majority articulates the correct test for determining whether the extension of a traffic stop is constitutional, it fails to apply the test. Its approach conflicts with precedent of both the United States Supreme Court and this state. Applying the correct test, the extension of the seizure here is unconstitutional because the extension was not reasonably related in scope to the circumstances which justified the initial traffic stop.
III
¶ 83. In sum, I agree with the majority that the appropriate focus here is the 78 seconds of the dog sniff.
¶ 84. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice LOUIS B. BUTLER, JR. join this dissent.
Notes
Instead, the dissent devotes a large part of its opinion to a long lament that the majority opinion does not address whether the drug-sniffing dog actually “alerted” to the presence of drugs in Megan Schillinger‘s vehicle and if it did, whether the dog‘s alerts were reliable. Dissent, ¶¶ 63-66. We do not address those issues because Arias never presented them to the circuit court and also because this matter is before us on certification of two issues: (1) “whether, under the Wisconsin Constitution, a dog sniff of a stopped vehicle is a ‘search’ “; and (2) “whether the vehicle stop was unreasonably prolonged in duration by the officer‘s controlled substance investigation.” Officer Rennie testified that when D‘Jango alerts he “sits passively.” See Majority op., ¶ 6. However, when deployed here, D‘Jango sat, barked, jogged from one side of the car to the other, and sat and barked again. It is questionable whether sitting and barking is tantamount to sitting “passively.” Even the court of appeals in its certification to this court stated that it was “not apparent from the videotape” that D‘Jango sat passively. Having reviewed the squad video, I agree that it is not apparent that D‘Jango ever sat passively.
When this court grants direct review upon certification, it acquires jurisdiction “of an appeal,” which includes all issues,
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
The Supreme Court concluded that from the moment Royer was taken to a private room while the officers retained his identification and ticket the means of his seizure became unreasonably intrusive. Id. at 501. The Court concluded that the investigative detention became a confinement equivalent to an arrest. Id. However, at that point there was not probable cause to arrest him. Id. at 503. The “least intrusive means” to satisfy the officers’ suspicions were not employed; and therefore, Royer‘s Fourth Amendment rights were violated. Id. at 504. One of the less restrictive means suggested by the Court that could have been employed to confirm or put aside the officers’ reasonable suspicion that Royer was transporting drugs was the use of a drug sniffing dog. Id. at 505-06. The Court‘s decision is driven by the means used to continue Royer‘s seizure.
Few problems affecting the health and welfare of our population... cause greater concern than the escalating use of controlled substances... [a]nd many drugs may be easily concealed. As a result, the obstacles to detection of illegal conduct maybe unmatched in any other area of law enforcement.