WisBar News: Appeals Court Says Traffic Stop Was Over, Dog Sniff Unconstitutional:

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  • WisBar News
    August
    15
    2013

    Appeals Court Says Traffic Stop Was Over, Dog Sniff Unconstitutional

    Joe Forward
    Legal Writer

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    Police car with dogAug. 15, 2013 – Police stopped a man for expired plates and issued a warning. But then the officer conducted a dog sniff, uncovering marijuana. Recently, a state appeals court overturned the man’s conviction for possession of marijuana with intent to deliver.

    While conducting the stop, police learned that Kenneth House had a prior conviction for possession of marijuana with intent to deliver, which triggered the dog sniff.

    But in State v. House, 2012AP2414-CR (Aug. 14, 2013), a three-judge panel for the District II Wisconsin Court of Appeals ruled that conducting the dog sniff was unconstitutional, a violation of rights against unreasonable searches and seizures.

    In cases where the dog sniff occurs after an officer concludes the underlying stop, “the reasons justifying the initial stop have ceased to exist,” Judge Lisa Neubauer explained.

    At trial, the court found that the officer had no reasonable suspicion to search the vehicle prior to conducting a dog sniff. The officer conducted it after learning that House was on probation for a prior drug offense. In general, reasonable suspicion to stop a vehicle or detain an individual cannot be based on knowledge of prior convictions.

    The appeals court noted that dog sniffs are not considered “searches,” and may be legal within an ongoing traffic stop, citing State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W. 748. But the officer who stopped House had concluded the stop.

    “Here, unlike Arias, the dog sniff attendant to House’s seizure occurred after Hoell had completed everything related to the initial stop,” Judge Neubauer wrote.

    “Therefore, Hoell’s continued detention of House to conduct the dog sniff was not reasonably related in scope to the circumstances justifying the stop,” she wrote.

    The drug evidence obtained during the search was inadmissible, the court ruled, reversing House’s conviction for possession of marijuana with intent to deliver.