WI: Pre-Jardines dog sniff of house saved by GFE and “unsettled law”; is the Fourth Amendment always subservient to good faith?

A pre-Jardines dog sniff of defendant’s door that led to a search warrant would not be suppressed because of “unsettled law” at the time of this search. [There were only a couple of reported cases.] The warrant application was vetted by the DA before it was presented to a judge. State v. Scull, 2015 WI 22, 2015 Wisc. LEXIS 24 (March 5, 2015), affg State v. Scull, 2014 WI App 17, 352 Wis. 2d 733, 843 N.W.2d 859 (2014) (posted here):

P24 In this case, the parties frame the question regarding the application of the good faith exception as whether the officers could have acted in reliance on clear and well-settled law that was subsequently reversed. Both parties agree that Jardines, 133 S. Ct. 1409, rendered the dog sniff of Scull’s home illegal at the time it was conducted. They dispute whether the officers could have acted in reliance on the law at the time of the search such that the good faith exception should apply.

P25 We need not address this argument because a straight-forward application of our good faith jurisprudence governing police reliance on a warrant resolves our inquiry. Here, the officers ultimately obtained a warrant to search Scull’s home and that warrant was issued by a detached and neutral commissioner. The commissioner’s decision to grant the warrant was a reasonable application of the unsettled state of the law at the time the warrant issued.

P26 Two Wisconsin cases had addressed the validity of a dog sniff. The first, State v. Miller, 2002 WI App 150, 256 Wis. 2d 80, 647 N.W.2d 348, addressed a warrantless dog sniff of a vehicle. In addressing the defendant’s Fourth Amendment rights, the court observed that a dog sniff is much less intrusive than a typical search. Id., ¶6. Further, dog sniffs reveal only illegal conduct to which there is no legitimate privacy interest. Id., ¶9. Accordingly, the court concluded that the dog sniff of the vehicle did not constitute a search and thus there was no Fourth Amendment violation. Id., ¶10.

P27 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 that there is no constitutionally protected interest in possessing contraband, and that a dog sniff is much less intrusive than activities that have been held to be searches. Id., ¶¶22-24. Accordingly, we determined that a dog sniff of a vehicle located in a public place was not a search for purposes of the Wisconsin Constitution. Id., ¶24.

P28 Both Wisconsin cases are consistent with the United States Supreme Court precedent issued prior to Jardines. In Illinois v. Caballes, 543 U.S. 405 (2005), the Court assessed whether a dog sniff of a vehicle stopped for speeding violated the Fourth Amendment. The defendant had argued that the sniff was impermissible because the officers lacked reasonable suspicion to justify it. Id. at 407. The court was not persuaded. Like Miller and Arias, it focused on the fact that there is no protected privacy interest in having an illegal substance and the non-intrusive nature of a dog sniff. The court observed that “[o]fficial conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Id. at 408 (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984)). Therefore, it concluded that “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.” Id. at 409.

This is a bad sign of things I’ve been seeing and speculating on: Is the exclusionary rule subservient to the good faith exception in every case? Is Joelis Jardines the only person to prevail on his issue, even when the defense raises a Fourth Amendment claim, completely unaware that Jardines was pending even in the Florida courts? Of course, after Jardines it’s binding on all courts. If it happened before SCOTUS rules, everybody else loses, except in Florida?

Is that where we are really headed? A constitutional doctrine subservient to good faith?