State v. Arias, No. 2006AP974-CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPatience Drake Roggensack
Citation2008 WI 84,752 N.W.2d 748
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Ramon Lopez ARIAS, Defendant-Respondent.
Decision Date09 July 2008
Docket NumberNo. 2006AP974-CR.
752 N.W.2d 748
2008 WI 84
STATE of Wisconsin, Plaintiff-Appellant,
v.
Ramon Lopez ARIAS, Defendant-Respondent.
No. 2006AP974-CR.
Supreme Court of Wisconsin.
Argued November 1, 2007.
Decided July 9, 2008.

[752 N.W.2d 750]

For the plaintiff-appellant there was oral argument by David H. Perlman, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-respondent there was a brief and oral argument by Lora B. Cerone, assistant state public defender.

¶ 1 PATIENCE DRAKE ROGGENSACK, J.


This case comes before us by certification from the court of appeals. Ramon Arias (Arias) was charged with one count of carrying a concealed weapon, contrary to Wis. Stat. §§ 941.23 and 939.51(3)(a) (2005-06);1 one count of possession of a switchblade knife, contrary to Wis. Stat. §§ 941.24 and 939.51(3)(a); and one count of possession with intent to deliver no more than five grams of cocaine within 1,000 feet of a school zone, contrary to Wis. Stat. §§ 961.41(1m)(cm)1r, 939.50(3)(f) and 961.49(2)(f).

¶ 2 After a preliminary hearing, the circuit court granted Arias's motion to suppress the weapon and the drugs obtained pursuant to the search conducted following a police dog's sniff of the exterior of the vehicle in which Arias was a passenger. The State appealed the order suppressing the evidence, and the court of appeals certified two issues to this court: (1) "whether, under the Wisconsin Constitution, a dog sniff of a stopped vehicle is a `search'"; and (2) "whether the vehicle stop was unreasonably prolonged in duration by the officer's controlled substance investigation."2 In its certification, the court of appeals explained:

752 N.W.2d 751

Here, the period of time to consider is the time consumed by the officer asking drug questions and preparing to release the dog, and then by the dog sniff itself. As we set forth above, the videotape shows that this period was approximately one minute and eighteen seconds.

¶ 3 We answer both certified questions in the negative. First, we conclude that a dog sniff of the exterior of a vehicle located in a public place does not constitute a search under the Wisconsin Constitution. Second, we conclude that Colby-Abbotsford Police Department Officer Brian Rennie (Rennie), who performed a "controlled substance investigation," did not unreasonably prolong his seizure of Arias. In so concluding, we determine that the circuit court's finding that the dog sniff prolonged the detention by "approximately 38 minutes" is clearly erroneous. The great weight and clear preponderance of the evidence shows that the dog sniff prolonged the detention by no more than 78 seconds. Under the totality of the circumstances herein presented, the 78 seconds during which the dog sniff occurred is a not an unreasonable incremental intrusion upon Arias's liberty. Accordingly, the dog sniff did not unreasonably prolong in duration the controlled substance investigation, which comported with the Fourth Amendment of the United States Constitution and with Article I, Section 11 of the Wisconsin Constitution. Therefore, we reverse the order of the circuit court and remand for further proceedings.

I. BACKGROUND

¶ 4 On August 20, 2005, Rennie, accompanied by his police dog, D'Jango, sat in his police cruiser located in the parking lot of a flower shop, running radar detection on Highway 13. While there, he observed Arias exit a grocery store with three 12-packs of beer and place them in a vehicle he knew belonged to Megan Schillinger (Schillinger). From his acquaintance with Schillinger, Rennie knew her to be 17 years of age. When Schillinger began driving the vehicle containing both the beer and Arias, Rennie stopped them because he believed that Wisconsin law prohibited minors from operating vehicles that contain intoxicants.3

¶ 5 Rennie pulled Schillinger over and called for back-up at approximately 10:45 p.m. He approached the car; explained to Schillinger why he had stopped her; and then he took her driver's license back to his squad car. Though Rennie testified at

752 N.W.2d 752

the preliminary hearing that at this point he radioed dispatch to relay Schillinger's driver's license information, the State does not challenge the circuit court's finding to the contrary: the circuit court found that Rennie did not radio in Schillinger's information until 11:27 p.m. Rennie then returned to Schillinger's vehicle, where he administered a preliminary breath test to her to determine whether she had consumed alcohol. The breath test registered "zero." Rennie then asked Schillinger if there were any drugs in the car. Schillinger replied "no." Rennie then asked Schillinger if she and Arias were "carrying around anything with [them]." She again replied "no." At this point, Rennie returned to his squad car and released D'Jango to perform a sniff around the exterior of Schillinger's vehicle. The State concedes that Rennie did not have a reasonable suspicion of drug activity prior to the dog sniff.

¶ 6 The surveillance video taken from Rennie's squad car captures the activity of D'Jango, who alerts by sitting, which is called a "pass holder." D'Jango appears on the video accompanied by Rennie. D'Jango proceeds to the passenger side of the car, where he sits and barks. D'Jango then gets up and jogs to the driver's side of the car, where he also sits and barks. The time that elapsed from Rennie's question about drugs to the completion of D'Jango's sniff was one minute and 18 seconds. D'Jango's sniff concluded four minutes and ten seconds after Rennie stopped Schillinger's vehicle.

¶ 7 As a result of what he perceived as D'Jango's positive alert on the vehicle, Rennie instructed Arias to exit the vehicle and performed a "pat-down" search of him. After searching Arias, Rennie instructed Schillinger to exit the vehicle, and he performed a "pat-down" search of her. He then proceeded to search Schillinger's car.

¶ 8 Inside the car, Rennie found a plastic bag containing a powdery substance that Arias identified as "coke" stuck between the front seats. Rennie also found a switchblade knife that "popped out" when he placed his weight on the front seat. Both items belonged to Arias.

¶ 9 Officer Jason Bauer, who arrived on the scene in response to Rennie's call for back-up, handcuffed Arias and searched him again, for the officers' safety. Rennie placed Arias in his squad car, removed the beer from Schillinger's car and told her that she was free to leave. The detainment concluded at approximately 11:27 p.m.

¶ 10 Rennie did not issue Schillinger a citation for transporting intoxicants as a minor until the next day. Rennie stated that he had drug evidence in his squad car that he wanted to deliver to the police station and that the encounter had led him to conclude that he "had a bigger concern with [Arias]" than in immediately issuing a ticket to Schillinger.

II. DISCUSSION

A. Standard of Review

¶ 11 "Whether police conduct constitutes a `search' within the meaning of the [Wisconsin Constitution] is a question of law" subject to our independent review. State v. Miller, 2002 WI App 150, ¶ 5, 256 Wis.2d 80, 647 N.W.2d 348. "The question [of] whether police conduct violated the constitutional guarantee against unreasonable searches and seizures is a question of constitutional fact" that we also review independently. State v. Griffith, 2000 WI 72, ¶ 23, 236 Wis.2d 48, 613 N.W.2d 72.

¶ 12 Upon review of an order granting a motion to suppress evidence, we uphold the circuit court's findings of historic fact unless they are clearly erroneous. State v. Fonte, 2005 WI 77, ¶ 11, 281

752 N.W.2d 753

Wis.2d 654, 698 N.W.2d 594. A finding is clearly erroneous if "it is against the great weight and clear preponderance of the evidence." State v. Sykes, 2005 WI 48, ¶ 21 n. 7, 279 Wis.2d 742, 695 N.W.2d 277 (quoting State v. Tomlinson, 2002 WI 91, ¶ 36, 254 Wis.2d 502, 648 N.W.2d 367).

B. Search

¶ 13 Arias asks us to conclude that the dog sniff of the exterior of Schillinger's vehicle was a search within the meaning of Article I, Section 11 of the Wisconsin Constitution and that the officer lacked reasonable suspicion to conduct such a search. Article I, Section 11 is the state analogue to the Fourth Amendment and protects persons against unreasonable searches and seizures.4

¶ 14 The United States Supreme Court has determined that a dog sniff of the exterior of a vehicle is not a search within the meaning of the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 410, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); see also United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The Supreme Court first announced that a dog sniff is not a search in Place. Id. There, the defendant aroused the suspicion of law enforcement officers at Miami International Airport, who relayed their suspicion to law enforcement officers in New York, the defendant's destination. Place, 462 U.S. at 698, 103 S.Ct. 2637. Agents of the Drug Enforcement Agency seized the defendant's luggage after he arrived at LaGuardia Airport and detained it for 90 minutes so that a narcotics detection dog could survey it. Id. at 698-99, 103 S.Ct. 2637. The dog sniffed the defendant's luggage and signaled that one of his bags contained drugs. Id. at 699, 103 S.Ct. 2637. The officers then secured a search warrant and found cocaine inside the bag to which the dog had alerted. Id.

¶ 15 Although the Supreme Court ruled that the 90-minute interlude between the detention of the luggage and the dog sniff was an unreasonably long seizure warranting suppression of the cocaine, the Court also concluded that the dog sniff did not constitute a search. Id. at 707, 103 S.Ct. 2637. The Court reasoned that a dog sniff "discloses only the presence or absence of narcotics" and, accordingly, provides distinct limits on lawful private interests that can be revealed through a sniff. Id.

¶ 16 Place's conclusion that a dog sniff...

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91 practice notes
  • State v. Scull, No. 2011AP2956–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • 5 Marzo 2015
    ...vehicle did not constitute a search and thus there was no Fourth Amendment violation. Id., ¶ 10.¶ 27 In the second case, State v. Arias, 2008 WI 84, 311 Wis.2d 358, 752 N.W.2d 748, this court likewise considered a dog sniff of a vehicle in a public place. We agreed with Miller's statements ......
  • Kochanski v. Speedway Superamerica, LLC, No. 2011AP1956.
    • United States
    • United States State Supreme Court of Wisconsin
    • 17 Julio 2014
    ...there is a possibility that “the manager may be on a pension or a deferred pension.” These findings are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis.2d 358, 752 N.W.2d 748. The record lacks any evidence that the uncalled witnesses were working at a different Speedway, that t......
  • Milwaukee Branch Naacp v. Walker, No. 2012AP1652.
    • United States
    • United States State Supreme Court of Wisconsin
    • 31 Julio 2014
    ...a trial to the circuit court, we will uphold that court's historic findings of fact unless they are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis.2d 358, 752 N.W.2d 748. ¶ 22 If we conclude that a voter regulation creates a severe burden on electors' right to vote, we will ap......
  • State v. Ferguson, No. 2007AP2095-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • 16 Junio 2009
    ...the same constitutional guarantees as the Supreme Court has accorded through its interpretation of the Fourth Amendment. State v. Arias, 2008 WI 84, ¶ 20, 311 Wis.2d 358, 752 N.W.2d 748. On only one occasion in our development of Article I, Section 11 jurisprudence have we required a showin......
  • Request a trial to view additional results
90 cases
  • State v. Scull, No. 2011AP2956–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • 5 Marzo 2015
    ...vehicle did not constitute a search and thus there was no Fourth Amendment violation. Id., ¶ 10.¶ 27 In the second case, State v. Arias, 2008 WI 84, 311 Wis.2d 358, 752 N.W.2d 748, this court likewise considered a dog sniff of a vehicle in a public place. We agreed with Miller's statements ......
  • Kochanski v. Speedway Superamerica, LLC, No. 2011AP1956.
    • United States
    • United States State Supreme Court of Wisconsin
    • 17 Julio 2014
    ...there is a possibility that “the manager may be on a pension or a deferred pension.” These findings are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis.2d 358, 752 N.W.2d 748. The record lacks any evidence that the uncalled witnesses were working at a different Speedway, that t......
  • Milwaukee Branch Naacp v. Walker, No. 2012AP1652.
    • United States
    • United States State Supreme Court of Wisconsin
    • 31 Julio 2014
    ...a trial to the circuit court, we will uphold that court's historic findings of fact unless they are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis.2d 358, 752 N.W.2d 748. ¶ 22 If we conclude that a voter regulation creates a severe burden on electors' right to vote, we will ap......
  • State v. Ferguson, No. 2007AP2095-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • 16 Junio 2009
    ...the same constitutional guarantees as the Supreme Court has accorded through its interpretation of the Fourth Amendment. State v. Arias, 2008 WI 84, ¶ 20, 311 Wis.2d 358, 752 N.W.2d 748. On only one occasion in our development of Article I, Section 11 jurisprudence have we required a showin......
  • Request a trial to view additional results

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