WI: Drug dog’s entering car was trespass, and “instinct exception,” even if it could be recognized, doesn’t apply

Drug dog’s twice entering defendant’s car without probable cause was a common law trespass under Jones and Jardines, and the police unlawfully gained information from that. The court rejects the “instinct exception” for the dog on the facts here, even if the state would recognize it. State v. Campbell, 2024 Wisc. App. LEXIS 185 (Mar. 5, 2024):

IV. The State failed to satisfy the instinct exception

P36 Even if we assume, without deciding, that the instinct exception properly existed under Wisconsin law, we conclude that the canine’s searches of Campbell’s vehicle would not fall under the instinct exception as described in other jurisdictions’ case law, and thus the searches here violated Campbell’s Fourth Amendment rights. This conclusion is true even if we were to adopt the approach of some jurisdictions that do not require reasonable suspicion or probable cause of the existence of narcotics prior to the canine’s entry.

P37 Here, the circuit court’s finding that the canine entered Campbell’s vehicle without any direction from Al-Moghrabi is clearly erroneous. See Walli, 334 Wis. 2d 402, ¶17. The dashboard camera video is clear that while Al-Moghrabi did not directly order or command the canine to enter the vehicle, he permitted and facilitated its entry. The canine’s searches in this case are similar to the search in Winningham, where law enforcement’s actions “creat[ed] the opportunity” for the canine to enter the van and demonstrated a “desire to facilitate a [canine] sniff of the van’s interior.” See Winningham, 140 F.3d at 1331 & n.2.

P38 Specifically, Al-Moghrabi had the canine on a six-foot leash with a pinch collar and therefore was able to exercise full control over the canine’s actions. Of significance, Al-Moghrabi and the canine were trained in 2013 to conduct “drug detection” and they had participated in monthly training since that time. This training included canine “obedience” training. When Al-Moghrabi walked the canine around Campbell’s vehicle, he stopped at the open driver’s side door and allowed the canine to enter. Notably, at that point, Al-Moghrabi’s body was blocking the canine from continuing its scan of the vehicle’s exterior. Also, Al-Moghrabi was simply observing the canine. He did not attempt to pull on the leash to remove the canine from the vehicle, and there was no evidence at the suppression hearing that he verbally instructed the canine—a highly trained law enforcement tool—to get out of the vehicle. Instead, he permitted the canine to stay in the vehicle for roughly thirty-eight seconds during the first search. Furthermore, there was a second search that occurred under nearly identical circumstances. The searches in this case are far from the type of situation that occurs when a canine freely breaks away from human control and investigates without assistance. Thus, we cannot conclude as a matter of law that, under these facts, the instinct exception applies.

P39 Thus, even if Wisconsin recognized the instinct exception to the warrant requirement—and even if the exception does not require reasonable suspicion or probable cause of narcotics inside the effect to be searched—the State failed to meet its burden of demonstrating that the exception would apply to the circumstances of the canine’s searches of Campbell’s vehicle. We therefore reverse the judgment of conviction and remand with instructions for the circuit court to grant Campbell’s motion to suppress.