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  • February 05, 2024

    Canine Vehicle Search Controlled by Police Didn’t Meet Instinct Exception

    A police dog’s warrantless search of the interior of a vehicle did not qualify for an instinct exception to the Fourth Amendment, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    A Crouching Police Officer In A Black Commando Sweater And Blue Tactical Pants Holding A German Shepherd By A Leash As The Dog Sniffs The Front Wheel Well Of A White Sedan

    Update March 4, 2024. The court of appeals withdrew this opinion on Feb. 27, 2024, and hasn't yet issued a revised opinion.​

    Feb. 5, 2024 – A police dog’s warrantless search of the interior of a vehicle did not qualify for an instinct exception to the Fourth Amendment, the Wisconsin Court of Appeals has ruled.

    In State v. Campbell, 2020AP1813 (Jan. 23, 2024) the Court of Appeals District III held that even if Wisconsin law were to recognize an instinct requirement, the exception did not apply because a police officer controlled the dog during the search.

    Traffic Stop

    In late 2017, Wisconsin State Trooper Mitchell Kraetke pulled Ashley Campbell over in Sawyer County because she was driving without a front license plate and her passenger wasn’t wearing a seatbelt.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    As he was pulling Campbell over, Kraetke called Sergeant Nick Al-Moghrabi, a deputy with the Sawyer County Sheriff’s Office, for backup.

    Drug Dog​​

    Al-Moghrabi arrived with his police dog as Kraekte was writing up several traffic infractions.

    Al-Moghrabi ordered Campbell and her passenger to get out of the vehicle. When Campbell got out of the vehicle, she left the driver’s door open.

    Al-Moghrabi twice led the dog around the car. On both circuits, the dog stopped, half entered the car through the open driver’s door, and alerted on a purse on the floor of the vehicle.

    The police officers searched the purse and discovered marijuana.

    Motion to Suppress Denied

    The Sawyer County District Attorney charged Campbell with one count of possession of THC (the active ingredient in marijuana) and one count of possession of drug paraphernalia.

    Campbell moved to suppress all the evidence that the police obtained after the police dog entered her vehicle.

    The circuit court ruled that an “instinct exception” to the Fourth Amendment’s warrant requirement exists for searches conducted by a police dog when the dog is not being directed by a police officer, and denied Campbell’s motion.

    Campbell pled guilty to possession of THC. The circuit court dismissed the other charge and read it in, then fined Campbell $637.50.

    Campbell appealed.

    Dog’s Entries Were Searches

    Writing for the three-judge panel, Judge Gregory Gill began his opinion by holding that the police dog’s entries into Campbell’s vehicle were searches for purposes of the Fourth Amendment.

    Gill noted that the U.S. Supreme Court has held that a police dog’s sniff of the exterior of a vehicle is not a search.

    However, Judge Gill concluded that given Campbell’s property interest in the inside of the vehicle, the dog’s entries and sniffs of the interior of the vehicle were searches.

    He pointed out that the U.S. Supreme Court has held that a police officer cannot evade the Fourth Amendment’s warrant requirement by using a dog. He also reasoned that the dog was a “trained member of law enforcement.”

    “Law enforcement undoubtedly gained information by physically intruding into one of Campbell’s ‘effect[s],’ and thus both entries constitute searches within the meaning of the Fourth Amendment,” Gill wrote.

    Instinct Exception

    The state acknowledged that no recognized exception to the Fourth Amendment’s warrant requirement applied to the dog’s searches.

    But the state argued that the court of appeals should adopt an instinct exception to the warrant requirement, as courts in other states have done.

    The state argued that a police dog acts instinctively when searching a vehicle if it is: 1) seeking an odor that it’s been trained to seek out; or 2) chasing a scent that it previously detected outside the vehicle, and argued that the instinct exception should apply when a police dog enters a suspect’s vehicle without the direction or facilitation of its handler.

    Judge Gill explained that courts which have adopted an instinct exception have held that where a dog enters a vehicle without having first detected a scent outside the vehicle, the government must show that the police did not assist, facilitate, or create an opportunity for the dog to enter the vehicle.

    Dog Did Not Act Instinctively

    Gill concluded that even if Wisconsin law were to recognize an instinct exception, it would not apply in Campbell’s case.

    “Here, the canine did not act instinctively because Al-Moghrabi had full control of the canine and he encouraged it to enter Campbell’s vehicle through the open vehicle’s door,” Judge Gill wrote.

    Gill pointed out that: 1) during the stop, Al-Moghrabi controlled the dog with a six-foot leash and a pinch collar; and 2) when the dog first entered the vehicle, Al-Moghrabi blocked the dog from continuing to scan the exterior of the vehicle.

     The court of appeals reversed the circuit court and remanded the case with instructions.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2024 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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