State v. Arias

ANN WALSH BRADLEY, J.

¶ 49. {dissenting). Our circuit court judges serve on the front line of the court *391 system. Day in and day out they are called upon to make tough decisions. The circuit court judge here made one of those tough decisions.

¶ 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.

H — l

¶ 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 *392 upon Arias's liberty." Majority op., ¶ 48. In reaching this conclusion, the majority determines that "the circuit court's finding that the dog sniff prolonged the detention by 'approximately 38 minutes' is clearly erroneous." Id.

¶ 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:

*393 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 *394 not find that the dog sniff alone prolonged the stop by 38 minutes. Moreover, the circuit court's reasoning had to account for the entire 38 minutes by which Rennie extended the stop. The majority's account fails to account for the entire period.

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 *395 lished probable cause to conduct the search of Arias and the vehicle. Because the court determined there was no reasonable suspicion to extend the seizure, it did not need to determine whether there was probable cause. As noted by the court of appeals in its certification to this court, the circuit court has not made the findings of fact necessary to establish probable cause: "There was no factual finding by the circuit court as to whether the dog actually did indicate the presence of controlled substances."

¶ 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.

*396 I — I HH

¶ 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 *397 majority simply jettisons the second requirement that an extension of a seizure relate to the circumstances that justify the initial seizure.

¶ 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, *398 it was expanded to conduct a dog sniff for drugs, which bears no relation to the underlying justification for the stop.

¶ 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 *399 that Officer Rennie became aware of additional suspicious factors that would give rise to an articulable suspicion that Schillinger or Arias had committed or were committing an offense other than the one that justified the initial seizure. Nonetheless, the stop was extended.

¶ 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. *400 However, it determined that because the officer stated that he was going to deploy his dog, thereby moving the driver to acquiesce to the search, "the stop was transformed into an unlawful detention." Id., ¶ 24. That is, the extension of the scope was not "reasonably related to the circumstances justifying the initial police interference." Id., ¶ 11 (citing Terry, 392 U.S. at 19-20 ).

¶ 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.

HH 1 — 1 H-i

¶ 83. In sum, I agree with the majority that the appropriate focus here is the 78 seconds of the dog sniff. *401 However, I disagree with its conclusion that the circuit court clearly erred in "finding that the dog sniff prolonged the detention by 'approximately 38 minutes.'" Majority op., ¶ 48. That conclusion misconstrues the circuit court's findings of fact and rationale. In addition, the majority advances a novel and problematic constitutional analysis. It fails to follow the test announced by the U.S. Supreme Court in Terry, 392 U.S. 1 (1968), and instead substitutes a new test. Accordingly, I respectfully dissent.

¶ 84. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice LOUIS B. BUTLER, JR. join this dissent.

See State v. Miller, 2002 WI App 150, ¶ 12 , 256 Wis. 2d 80 , 647 N.W.2d 348 ; Illinois v. Caballes, 543 U.S. 405, 409 (2005).

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.

The majority states that it does not address whether the dog alerted or whether there was probable cause because the issues were not presented to the circuit court and because they were not certified questions.

When this court grants direct review upon certification, it acquires jurisdiction "of an appeal," which includes all issues, *396 not merely the issues certified, unless the court by order limits the issues on certification. Wis. Stat. §§ 808.05 (2); (Rule) 809.61; State v. Schweda, 2007 WI 100, ¶ 49 , 303 Wis. 2d 353 , 736 N.W.2d 49 (Abrahamson, C.J., concurring); State v. Mitchell, 167 Wis. 2d 672, 677 , 482 N.W.2d 364 (1992); State v. Stoehr, 134 Wis. 2d 66, 70 , 396 N.W.2d 177 (1986). Here, the order did not limit the issues.