State v. Miller

2002 WI App 150, 647 N.W.2d 348, 256 Wis. 2d 80, 2002 Wisc. App. LEXIS 521

• Court: Court of Appeals of Wisconsin
• Decided: May 2, 2002
• Docket: 01-1993-CR
• Status: Published

Opinions

DYKMAN, J.

¶ 1. Tina Miller appeals from a judgment convicting her of possessing a controlled substance. She contends that the police violated her right against unreasonable searches and seizures when they conducted a canine sniff on her car, entered it and searched her purse. Because controlling precedent requires us to conclude that the dog sniff was not a search, and because the dog's alert on Miller's vehicle provided the police with probable cause, we affirm.

BACKGROUND

¶ 2. The police executed a search warrant to search the ground floor of a duplex in Dodgeville. In the midst of the search, officers discovered some marijuana. The occupants of the house were handcuffed, placed in á squad car and taken from the scene. A police officer then told another officer, Thomas Forbes, to "check around the cars located in that area" with Cora, a dog trained in detecting the odor of contraband.

¶ 3. Forbes walked Cora around a number of cars that were parked on the street near the residence. Cora alerted on the driver's side door of a car parked across the street.² Forbes walked Cora around the same car again and she alerted a second time on the driver's side door. The door was unlocked, so Forbes opened it and put Cora inside the car. When Cora alerted on a purse that was sitting on the driver's seat, Forbes took the purse, opened it, and found marijuana inside. Both the car and the purse belonged to Tina Miller, who was a guest at the residence. None of the officers knew to whom the car belonged before Forbes searched it.

¶ 4. The State charged Miller with possessing a controlled substance, contrary to Wis. Stat. §§ 961.41(3g)(e) and 961.14(4)(t). Miller moved to suppress the evidence found in her car, arguing that police unlawfully searched the car in violation of the state and federal constitutions. The circuit court denied the motion, and Miller pleaded no contest. Miller appeals.

DECISION

A. Canine Sniffs and Search and Seizure Law

¶ 5. The central dispute in this case is whether Forbes's use of a drug-sniffing dog to detect the presence of marijuana inside Miller's car violated her rights under the Fourth Amendment to the United States Constitution and article I, § 11 of the Wisconsin Constitution, which both protect the people's right against unreasonable searches and seizures. It is undisputed that the police did not have a warrant to search the car.³ The State also does not argue that the police had probable cause or even reasonable suspicion to believe that they would find evidence of a crime inside the car before they conducted the dog sniff. Instead, the State argues that the dog sniff of Miller's car was not a search and thus neither the Fourth Amendment nor art. I, § 11 are implicated. Whether police conduct constitutes a "search" within the meaning of the state and federal constitutions is a question of law, which we review de novo. See State v. Edgeberg, 188 Wis. 2d 339, 344-45, 524 N.W.2d 911 (Ct. App. 1994).

¶ 6. The Supreme Court first addressed whether the Fourth Amendment applies to canine sniffs in United States v. Place, 462 U.S. 696 (1983). In Place, federal agents subjected the defendant's luggage to a "sniff test" by a trained narcotics detection dog after seizing the luggage in an airport. Id. at 698-99. The Court held that Place's luggage had been unreasonably seized. Id. at 710. In dicta, however, the Court also stated that the canine sniff of Place's luggage did not constitute a search within the meaning of the Fourth Amendment. Id. at 707. Although it noted that "a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment," the Court concluded that was not disposi-tive in determining whether a search had occurred. Id. Rather, the Court focused on the fact that a dog sniff is "much less intrusive than a typical search." Id. Specifically, the Court reasoned:

[T]he sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

Id. The Court then concluded "that the particular course of investigation that the agents intended to pursue here — exposure of respondent's luggage, which was located in a public place, to a trained canine — did not constitute a 'search' within the meaning of the Fourth Amendment." Id.; see also United States v. Jacobsen, 466 U.S. 109, 123 (1984) (holding that a drug field test does not compromise any legitimate interest in privacy because it discloses only whether a particular substance is cocaine).

¶ 7. Although our supreme court has not addressed this issue, this court has once addressed the constitutional requirements with respect to dog sniffs and concluded that a dog sniff of a car located in a motel parking lot did not implicate the Fourth Amendment. See State v. Garcia, 195 Wis. 2d 68, 535 N.W.2d 124 (Ct. App. 1995).⁴ In doing so, we did not consider Place, but rather relied on two federal court of appeals cases concluding that a motel guest does not have an expectation of privacy in a parking place. See United States v. Diaz, 25 F.3d 392, 396 (6th Cir. 1994); United States v. Ludwig, 10 F.3d 1523, 1526 (10th Cir. 1993). We then concluded, "there is no legitimate expectation of privacy in the air space around a car that is parked in a motel parking lot." Garcia, 195 Wis. 2d at 75.

¶ 8. Miller does not discuss Place or Garcia but rather argues that a conclusion in her favor is dictated by City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond, the City of Indianapolis had instituted vehicle checkpoints on highways with the purpose of finding illegal drugs. Id. at 34. After police stopped a vehicle, they would walk a drug-detecting dog around it. Id. at 35. The Court concluded that the checkpoint program violated the Fourth Amendment because it allowed police to seize vehicles without individualized suspicion and was only for the purpose of finding "ordinary criminal wrongdoing." Id. at 42, 48. Although the Court held that the program was unconstitutional, its holding had nothing to do with the use of drug-sniffing dogs, but resulted because vehicles were being stopped, i.e. "seized," without reasonable suspicion. The Court never explicitly reached the issue of using narcotics-detecting dogs. However, it cited to Place and noted that the "fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search." Id. at 40. Miller's car did not need to be stopped in order to conduct a dog sniff, so Edmond does not apply.

¶ 9. We therefore conclude that under the Supreme Court's interpretation of the Fourth Amendment, dog sniffs are not searches. Although Place's actual holding specifically addressed only sniffs of luggage in an airport, the logic of Place — that dog sniffs reveal only illegal conduct so they intrude on no legitimate privacy interest — would apply equally in any setting.⁵ Even if Place's holding does not extend to dog sniffs of homes or persons, we see no meaningful distinction in this context between dog sniffs of luggage in an airport and dog sniffs of unoccupied cars parked on a public street.

¶ 10. Because current law does not classify canine sniffs as searches within the meaning of the Fourth Amendment, Forbes was not required to have probable cause or reasonable suspicion before walking a dog around Miller's vehicle for the purpose of detecting drugs in the vehicle's interior.

B. Probable Cause to Search Miller's Vehicle

¶ 11. The only remaining issue is whether Forbes violated the Fourth Amendment when he opened the car door, let Cora inside, and opened and looked inside Miller's purse. There is no question that entering a person's car and searching items inside it constitutes a search. See Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973). However, because of the reduced expectation of privacy that individuals have in vehicles, a warrantless search of a vehicle is not necessarily unreasonable. See State v. Matejka, 2001 WI 5, ¶ 22, 241 Wis. 2d 52, 621 N.W.2d 891; State v. Pallone, 2000 WI 77, ¶ 59, 236 Wis. 2d 162, 613 N.W.2d 568. Rather, an automobile may be searched without a warrant so long as there is probable cause to believe that evidence of a crime will be found inside. Pallone, 2000 WI 77 at ¶¶ 58 to 60.

¶ 12. Whether a given set of facts provided probable cause to search a vehicle is a question of law that we review de novo. See id. at ¶ 27. Although Wisconsin courts have not addressed whether an alert from a drug-sniffing dog provides sufficient evidence of a crime to search a vehicle,⁶ the supreme court has held that the "unmistakable odor of marijuana" detected by a police officer coming from an automobile provides probable cause to search that automobile. State v. Secrist, 224 , 589 N.W.2d 387 (1999). Further, courts in other jurisdictions have uniformly held that a dog's alert on an object provides probable cause to search that object, provided that the dog is trained in narcotics detection and has demonstrated a sufficient level of reliability in detecting drugs in the past and the officer with the dog is familiar with how it reacted when it smelled contraband.⁷ See, e.g., United States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir. 1993); Ludwig, 10 F.3d at 1527-28; United States v. Race, 529 F.2d 12, 14 (1st Cir. 1976); United States v. Neatherlin, 66 F. Supp. 2d 1157, 1160-61 (D. Mont. 1999); State v. Siluk, 567 So. 2d 26, 27 n.1, 28 (Fla. Dist. Ct. App. 1990); Commonwealth v. LaPlante, 622 N.E.2d 1357, 1361 n.10 (Mass. 1993); see also Secrist, 224 Wis. 2d at 211 n.8 (quoting 1 Wayne R. LaFave, Search and Seizure § 2.2(f), at 450 (3d ed. 1996), for the proposition that a trained dog's smelling of controlled substances can provide probable cause to search when dog has been shown to be reliable).

¶ 13. Forbes testified that Cora had been trained in narcotics detection, that he had conducted over one hundred drug sniffs with Cora and that he was familiar with how Cora would alert to him. He further testified that of the forty times that Cora alerted on a vehicle, "illegal contraband or substances" were found thirty-five times. Miller does not challenge the veracity of this testimony.

¶ 14. We conclude that under these facts, Forbes had probable cause to search Miller's vehicle. Although Cora did not have a 100% rate of accuracy, probable cause requires only that there is a "fair probability" that evidence of a crime will be found. State v. Hughes, 2000 WI 24, ¶ 21, 233 Wis. 2d 280, 607 N.W.2d 621. Cora's level of reliability was sufficient to authorize a search of the vehicle under this test.

¶ 15. Probable cause to search Miller's vehicle also included probable cause to search Miller's purse. See Wyoming v. Houghton, 526 U.S. 295, 302 (1999) (holding that officers may search packages and containers in a vehicle without individualized suspicion for each object when probable cause exists to search the vehicle). Further, that Forbes could not have known whether the purse belonged to the owner of the vehicle did not affect his authority to search it. See Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). Accordingly, once the dog sniff indicated that Miller's vehicle contained a controlled substance, Forbes had probable cause to search both the car and the purse. The circuit court did not err in denying Miller's motion to suppress.

By the Court. — Judgment affirmed.

2 Forbes testified that Cora would indicate that contraband was located in a car by holding her breath and making a scratching motion.

3 The warrant to search the residence is not part of the record. The State does not argue, however, that the warrant's scope extended to searching vehicles parked on the street.

4 We did not consider the applicability of art. I, § 11 of the Wisconsin Constitution.

5 At least one federal court has concluded that, despite United States v. Place, 462 U.S. 696 (1983), and United States v. Jacobsen, 466 U.S. 109 (1984), dog sniffs are searches when they are performed outside a home because there is a greater expectation of privacy in homes. See United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir. 1985). Another district court concluded, without addressing Place, that a canine sniff of a person was a search. United States v. Kelly, 128 F. Supp. 2d 1021, 1023 (S.D. Tex 2001). But these conclusions are questionable given Place's broad rationale. Further, neither Place nor Jacobsen suggested that the object subject to search was an important or even relevant consideration in determining whether a dog sniff is a search.

6 State v. Garcia, 195 Wis. 2d 68, 535 N.W.2d 124 (Ct. App. 1995), did not address this issue because it concluded that the defendant had given consent to search.

7 This suggests that there may be a need to obtain additional evidence to support probable cause when the dog has not yet established a proven track record that it is reliable.