State v. Campbell
Docket Number | 2020AP1813-CR |
Decision Date | 23 January 2024 |
Parties | STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. ASHLEY JEAN CAMPBELL, DEFENDANT-APPELLANT. |
Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Sawyer County: No 2018CM36 JOHN M. YACKEL, Judge.
Before Stark, P. J., Hruz and Gill, JJ.
¶1 Law enforcement stopped a vehicle driven by Ashley Campbell. While an officer drafted citations for traffic infractions another officer arrived with a police canine and ordered Campbell and her passenger out of the vehicle. As Campbell exited the vehicle, she left open her driver's side door.
¶2 The officer twice led the canine on a leash around the vehicle's exterior and, on each occasion, the canine entered through the open door and "alerted"[1] to the presence of narcotics in a purse located on the vehicle's floor. A subsequent search of the purse revealed suspected marijuana. Campbell argues that the canine's warrantless "searches" of the vehicle violated her rights under the Fourth Amendment to the United States Constitution, and that the circuit court erred by denying her motion to suppress the results of those searches.
¶3 We conclude that both of the canine's entries into Campbell's vehicle constituted searches under the Fourth Amendment. Therefore, the State was required to either obtain a warrant prior to the searches or rely upon an exception to the Fourth Amendment's warrant requirement in order to justify the warrantless searches. See United States v Jones, 565 U.S. 400, 402 (2012).
¶4 The State asks this court to adopt the so called "instinct exception" to the Fourth Amendment's warrant requirement and hold that the exception applied to the canine's searches of the interior of Campbell's vehicle. Under the instinct exception, adopted by some other jurisdictions, canine searches that naturally extend into a vehicle during a traffic stop are constitutional if the canine conducts the search "instinctively" and without an officer's direction, assistance, or encouragement. See, e.g., United States v. Pierce, 622 F.3d 209, 214-15 (3dCir. 2010).
¶5 We conclude that regardless of whether an "instinct exception" to the Fourth Amendment's warrant requirement exists when a canine "searches" a vehicle, the exception does not apply under the facts in this case to excuse the State's obligation to obtain a warrant prior to searching Campbell's vehicle. Here, the canine did not instinctively enter Campbell's vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver's side door. We therefore conclude that even if the instinct exception were to be recognized in Wisconsin, the exception would not apply to the canine's searches in this case. We therefore reverse the judgment of conviction and remand with directions for the circuit court to grant Campbell's motion to suppress.[2]
¶6 The State charged Campbell with one count of possession of tetrahydrocannabinols (THC) and one count of possession of drug paraphernalia. Campbell filed a motion to suppress all evidence that law enforcement collected following the canine's entries into her vehicle.
¶7 At that hearing, it was established that in 2017, Wisconsin State Trooper Mitchell Kraetke initiated a traffic stop of a vehicle after he noticed that the vehicle did not have a front license plate and the vehicle's passenger was not wearing a seat belt. As Kraetke stopped the vehicle, he called for Sergeant Al-Moghrabi to arrive with his canine "for assistance." After making contact with the driver-Campbell-and her passenger, Kraetke conducted a records check and discovered that Campbell's license was suspended for failure to pay a forfeiture, and her passenger's license was revoked due to a prior operating a motor vehicle while intoxicated conviction.
¶8 Al-Moghrabi-the sole witness at the suppression hearing-testified that he was trained as a canine handler at the time of the traffic stop. According to Al-Moghrabi, his training was four months' long and "cover[ed] everything from obedience and [sic] apprehension work." He also stated that he and his canine had participated in required monthly training and that they had been certified together in "drug detection" since November 2013.
¶9 Al-Moghrabi testified that when he arrived at the traffic stop, he had a brief conversation with Kraetke, and he then approached Campbell's vehicle and asked Campbell and her passenger if there was any illegal contraband in the vehicle, to which both individuals answered in the negative. Al-Moghrabi then ordered both individuals out of the vehicle. After Campbell exited, she did not close her driver's side door, and it remained open. Kraetke then met with Campbell and her passenger behind the vehicle to discuss the traffic infractions.[3]
¶10 Al-Moghrabi then retrieved the canine from his vehicle. Al-Moghrabi stated that the canine was on a six-foot leash "with a pinch collar," and he "always" walks ahead of his canine on exterior scans of the side of a vehicle "so that [he] can slow [the canine's] search and make sure ... [the canine] is not going to turn and have a car right there." Upon reaching Campbell's vehicle, Al-Moghrabi walked the canine around the open driver's side door and stopped at the hood of the vehicle. Al-Moghrabi testified that he then allowed the canine to "scan" the vehicle, beginning at the front of the vehicle and working toward the back. "Scanning," according to Al-Moghrabi, meant that he allowed the canine to sniff "by [it] self rather than "pointing out certain areas for [the canine] to check." He also stated that the canine's leash was "slacked," which is confirmed by a dashboard camera video from Kraetke's squad car.
¶11 The dashboard camera video shows that Al-Moghrabi walked from the hood of Campbell's vehicle, around the open driver's side door, up to the door's entrance, and then stopped and allowed the canine to enter the vehicle. Notably, Al-Moghrabi's body was blocking the canine from continuing its "scan" of the vehicle's exterior. Furthermore, Al-Moghrabi was standing by the vehicle observing the canine-he was not pulling the leash or attempting to get the canine to exit the vehicle in any fashion. During this time, the canine's front two paws appeared to be on the driver's seat and its rear paws were on the pavement outside of the vehicle. After roughly ten seconds of the canine sniffing inside Campbell's vehicle, Al-Moghrabi stepped toward the road, but he still did not pull on the leash. Roughly five seconds later, the canine's front two paws voluntarily exited the vehicle so that all of its paws were on the pavement, but its head was still inside the vehicle, and Al-Moghrabi moved back to standing next to the vehicle with his body again blocking the canine from moving toward the rear of the vehicle.
¶12 For roughly six seconds, Al-Moghrabi appeared to watch the canine while he and the canine were both in this position. Then, the canine's front two paws moved back onto what appeared to be the driver's seat. Again, Al-Moghrabi did not pull on the leash. The canine remained in this position for several seconds before exiting the vehicle completely, and Al-Moghrabi then led it around the rear of the vehicle. In total, the canine appeared to have its head in the vehicle for roughly thirty-eight seconds during this first entry into the vehicle's interior. Al-Moghrabi testified that while inside the vehicle, the canine started "sniffing intently at" a purse that was on the floor. According to Al-Moghrabi, that "behavior ... is indicative" of an alert.
¶13 After the first entry, Al-Moghrabi directed the canine around the vehicle counterclockwise and back to the driver's side door. Upon walking around the driver's side door with the canine, Al-Moghrabi's actions mirrored his conduct during the first entry. That is, he walked the canine up to the door's opening, stopped and allowed the canine to enter the vehicle, and kept his body between the canine and the rear of the vehicle. During the second entry, the canine had its head inside the vehicle for roughly fifteen seconds. Al-Moghrabi did not pull on the leash at any point. He testified that upon the canine's second entry, the canine again began "sniffing intently" at the purse.
¶14 Afterward, Al-Moghrabi returned the canine to his vehicle. While Kraetke was talking to Campbell and her passenger, Al-Moghrabi again returned to the front passenger side of Campbell's vehicle where he searched the vehicle for the purse and located the suspected marijuana within the purse.
¶15 Following the motion hearing, the circuit court stated that it found Al-Moghrabi "credible ... regarding what took place." Specifically, the court stated that: the driver's side door was left open after Al-Moghrabi ordered Campbell out of the vehicle; the canine was on a "loose leash"; and the canine entered the vehicle the first time "without any direction from law enforcement." The court, relying on cases from outside of our jurisdiction, adopted the State's argument that there is an instinct exception to the Fourth Amendment's warrant requirement and that it applies "when a [canine] jumps instinctively through an open car door without any facilitation by its handler." The court determined that the exception applied to the canine's searches in this case and that the canine's entries into the vehicle did not violate the Fourth Amendment.
¶16 Campbell pled no contest to possession of THC, and the remaining charge was dismissed and read in. The circuit court imposed a $673.50 fine. Campbell now appeals.
¶17 Our review of a circuit court's decision denying a motion to suppress evidence presents a question of constitutional...
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