Dog Sniff Is Not a 'Search' Under Wis. Law

A police dog sniffing around the outside of a car in a public place is not a "search" as defined by the Wisconsin Constitution, a sharply divided state Supreme Court has ruled.

Reversing a trial court's decision to suppress a weapon and drugs seized because of the dog sniff, the 4-3 majority said a vehicle's occupant has "no reasonable expectation of privacy in the air space surrounding a vehicle that he is occupying in a public space."

According to the opinion, police officer Brian Rennie pulled over a car driven by an unidentified 17-year-old girl after observing Ramon Arias get into the car carrying beer.

Rennie verified the girl's driver's license information, gave her a preliminary breath test and asked if any drugs were in the car, the opinion says.

When she said no, Rennie released his police dog from the squad car to sniff around the car's exterior, it says.

The dog alerted to the passenger side of the car, and Rennie ordered Arias and the driver to submit to a "pat down."

He then searched the car and found cocaine and a switchblade knife. He arrested Arias but let the driver go, the opinion says.

A trial judge in the Clark County Circuit Court granted Arias' motion to suppress the evidence Rennie seized.

Prosecutors turned to the Wisconsin Court of Appeal, which certified the search issue for direct appeal to the state Supreme Court.

The high court reversed.

The Supreme Court noted that Arias had challenged the evidence under Article I, Section 11 of the state constitution, which is an analogue to the Fourth Amendment.

Consideration of the issue therefore should begin with an analysis of federal law, the court said.

The U.S. Supreme Court has determined that a dog sniff of a vehicle's exterior does not meet the Fourth Amendment's definition of "search," the state high court explained.

Lower courts in the state that have addressed the issue have reached the same conclusion, the court noted.

The state Supreme Court saw no reason to depart from state or federal precedent.

"A dog sniff is much less intrusive than activities that have been held to be searches," the court said. "Indeed, a dog sniff is unique as a means of detection because, as the [U.S.] Supreme Court has observed, a dog sniff gives limited information that is relevant only to contraband for which there is no constitutional protection."

Although Arias contended that the area surrounding the vehicle was constitutionally protected, Article I, Section 11 is "meant to protect people, not things or places," the court said.

Citing Article I and the "limited intrusion" resulting from the dog sniff, the state Supreme Court reversed the trial judge's ruling.

The dissenting justices said the issue was not whether the dog sniff amounted to a search, but whether the length of Arias' extended detention was motivated by "objective and articulable" facts that gave rise to a reasonable suspicion of illegal activity to justify the detention.

The dissenters found no reasonable suspicion for the search.

"Extending the traffic stop to deploy a drug-sniffing dog is not related in the slightest to transportation of beer by a minor," the dissent said.

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