By Alexandria Staubach The Wisconsin Court of Appeals recently rejected a new Fourth Amendment warrant exception for canine searches, but different facts could lead to a different result in the future. The state argued in the case that an “instinct exception” permits canine searches that naturally extend into a vehicle during a traffic stop if the canine conducts the search “instinctively,” meaning without an officer’s direction, assistance, or encouragement. The appeals court concluded that regardless of whether an instinct exception to the warrant requirement exists in Wisconsin, the state failed to establish a necessary element of any such exception—that the canine act unprompted. The appeals court remanded the case to Sawyer County Circuit Court with an order to grant Ashley Campbell’s motion to suppress. ![]() District III Judge Gregory B. Gill wrote for the court, joined by Judges Lisa K. Stark and Thomas M. Hruz. Campbell pleaded no contest to possession of marijuana after Judge John M. Yackel denied her motion to suppress the marijuana found during a warrantless search of her vehicle. Yackel accepted the state’s argument for the instinct exception, which had not otherwise been adopted in the state of Wisconsin. Trooper Mitchell Kraetke initiated a traffic stop of Campbell’s vehicle after noticing that the vehicle did not have a front license plate and the passenger was not wearing a seat belt. As Kraetke stopped the vehicle, he called for Sergeant Al-Moghrabi to arrive with his canine to assist. After initially talking with Campbell and her passenger, Kraetke conducted a record check and discovered that Campbell’s license was suspended for failure to pay a forfeiture. Her passenger’s license was revoked due to a prior conviction for operating a motor vehicle while intoxicated. Al-Moghrabi arrived, talked briefly with Kraetke and then approached Campbell’s vehicle. He asked Campbell and her passenger if there was any illegal contraband in the vehicle, and both responded there was not. Al-Moghrabi then ordered both individuals out of the vehicle. Campbell did not close her driver’s side door when she exited, and it remained open. Kraetke then met with Campbell and her passenger behind the vehicle to discuss the traffic infractions. Meanwhile, Al-Moghrabi retrieved his canine from his squad car and walked the dog to the hood of Campbell’s vehicle, allowing the dog to “scan” it. “Scanning,” meant that al-Moghrabi allowed the canine to sniff independently instead of identifying certain areas of the vehicle for the dog to check. The canine’s leash had slack. Dashboard camera video from the trial court showed that Al-Moghrabi walked from the hood of Campbell’s vehicle, around the open driver’s side door, and up to the door’s entrance. Al-Moghrabi then stopped and allowed the canine to enter the vehicle. Al-Moghrabi was not pulling the leash or attempting to get the canine to exit the vehicle at any point. Al-Moghrabi testified that the dog began “sniffing intently at” a purse on the floor of the vehicle. According to Al-Moghrabi intent sniffing indicates an alert. The dog exited the vehicle and Al-Moghrabi repeated the steps. He walked the canine up to the door’s opening, stopped, and allowed the canine to enter the vehicle. Al-Moghrabi testified that on the canine’s second entry, it again began “sniffing intently” at the purse. Al-Moghrabi returned the dog to his squad car then searched the purse, finding marijuana inside. “(R)egardless 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,” wrote Gill. “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,” Gill wrote. Jurisdictions recognizing the instinct exception have split on whether reasonable suspicion that narcotics be present is required prior to the dog’s unprompted alert. The state argued in Campbell’s case that no independent basis for reasonable suspicion that narcotics are present is required.
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