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  • WisBar News
    March 05, 2015

    Wisconsin Supreme Court Upholds Conviction Despite Warrantless Dog Sniff

    Joe Forward
    Legal Writer

    March 5, 2015 – Police did not obtain a warrant before using a drug dog to sniff around Gary Scull’s front door. Recently, the Wisconsin Supreme Court upheld Scull’s conviction for drug dealing, rejecting his claim that all evidence should be suppressed.

    In 2010, a confidential informant gave Milwaukee police tips that Scull was dealing drugs, including cocaine and marijuana. Based on that information, a detective took his drug dog to Scull’s front door, and the dog alerted to the presence of drugs inside.

    Based on this information, police obtained a warrant to search Scull’s home and found about 54 grams of crack, 102 grams of marijuana, and paraphernalia consistent with drug trafficking. The state charged him with intent to deliver pot and crack cocaine.

    Scull filed a motion to suppress the evidence. He said police obtained a warrant based on an illegal dog sniff. Thus, the warrant was invalid, Scull argued. But the circuit court denied Scull’s motion, concluding dog sniffs are not “searches” requiring a warrant.

    While Scull’s appeal was pending, the U.S. Supreme Court ruled, in Florida v. Jardines, 133 S. Ct. 1409 (2013), that dog sniffs outside homes are considered “searches” subject to the Fourth Amendment, which generally requires police to obtain a "search" warrant.

    At the time of the search, dog sniffs were not considered “searches” in circumstances involving vehicles or luggage, but controlling law did not address dog sniffs outside homes. Jardines clarified the law, but was decided after the dog sniff in Scull’s case.

    Thus, the appeals court ruled that police relied in good faith on the warrant, and the commissioner reasonably relied on unsettled law to issue the warrant. Thus, it upheld the trial court’s decision to deny Scull’s suppression motion and affirmed the conviction.

    In State v. Scull, 2015 WI 22 (March 5, 2015), all seven justices agreed that the appeals court decision should be affirmed because the officers relied in good faith on a search warrant that was issued by a detached magistrate, despite uncertainty on dog sniffs. Two justices filed concurring opinions.

    In an opinion by Justice Ann Walsh Bradley, a majority ruled that the “good faith exception” to the warrant requirement applied because, before applying for the warrant, police conducted a significant investigation and a prosecutor reviewed the warrant application. In addition, the majority noted, a reasonable officer had no reason to believe the search was illegal upon execution.

    “[T]he good faith exception to the exclusionary rule applies because the evidence Scull seeks to suppress was obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate,” wrote Justice Bradley.

    The court noted that the exclusionary rule is meant to deter police misconduct and assure judicial integrity when issuing warrants, but there was no police misconduct here and the court commissioner’s warrant decision was based on law prior to Jardines.


    Justice Patience Roggensack wrote a concurring opinion, joined by Justices Patrick Crooks, Annette Ziegler, and Michael Gableman. Roggensack agreed that the good faith exception applied because the officers reasonably relied on the warrant.

    The exclusionary rule, Justice Roggensack noted, is a judicially created remedy that safeguards against future Fourth Amendment violations.

    However, Roggensack wrote separately to clarify that “assurance of judicial integrity” – errors by magistrates or judges who issue warrants – cannot be the only justification to exclude evidence tainted by unlawful searches. Police misconduct must be present.

     “Accordingly, the majority opinion is not to be read as setting a new standard that permits the exclusion of evidence without police misconduct,” she wrote.

    “Protection of judicial integrity is not part of the Supreme Court’s Fourth Amendment analysis when the remedy sought is suppression of evidence,” Roggensack explained.

    Justice Ziegler, joined by Justices Crooks and Gableman, wrote separately to clarify that the exclusionary rule can apply to violations of other constitutional provisions, including the Fifth and Sixth amendments covering criminal prosecutions.

    “The exclusionary rule requires suppression of evidence that was obtained in violation of the Constitution, unless suppression would not deter police misconduct or the error in admitting the evidence was harmless beyond a reasonable doubt,” she wrote.

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