Court To Cops: There’s No ‘Instinct Exception’ For Drug Dogs Handlers Refuse To Handle

Officers who handle drug dogs like to claim they’re so highly skilled at animal handling they can recognize otherwise imperceptible moves by their animals as the dog “alerting,” giving them (and, more literally) their animals free rein to perform warrantless searches of vehicles.

But when these arguments fail, and it’s apparent a K-9 cop just let their animal roam free, these same officers who pride themselves (at least when sworn in as witnesses) in controlling their animals claim these same animals can’t possibly be controlled. After all, the dogs operate on instinct, and who among us is capable of preventing an animal from acting on its urges?

Well, to be honest, all of us are expected to do that. That’s why we can be fined or arrested if our animal runs loose and/or injures someone else. Somehow, cops don’t expect the same standard to be applied to them and their supposedly highly trained dogs.

Fortunately, at least in this case, a court isn’t having it. In this case, an illegal search performed by “probable cause on four legs” gets tossed by a state appeals court because an officer failed to control his animal. (via FourthAmendment.com)

Here’s a very dry recounting [PDF] of the facts by the Wisconsin Court of Appeals.

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.

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” to the presence of narcotics in a purse located on the vehicle’s floor. A subsequent search of the purse revealed suspected marijuana.

Campbell challenged the search, arguing the dog’s decision to enter her vehicle violated her Fourth Amendment rights. The lower court, however, agreed with the government’s arguments that nothing happened here that wasn’t allowed by the Constitution, even if the officers failed to show they had the reasonable suspicion needed to allow a dog to intrude into the personal space that was the interior of Campbell’s vehicle.

Now, it’s very difficult to challenge dog searches like these. If you can’t prove the traffic stop has been unlawfully extended (as the Supreme Court ruled in the Rodriguez case), you’re left with the unpalatable option of basically arguing the dog didn’t alert. And that’s a tough thing to prove, since courts often give cops and their dogs the benefit of a doubt because (as the assertions go) cops and their dogs are law enforcement professionals and anyone subjected to a specious “alert” is just a criminal that happened to get caught.

In this case, the cops lose, along with their interloping dog.

We conclude that both of the canine’s entries into Campbell’s vehicle constituted searches under the Fourth Amendment.

The state offered a rather novel argument in favor of its intruding dog: the so-called “instinct exception.” This theory states a cop can’t help if a dog smells something illegal and decides to invade private property usually considered to be protected by the Fourth Amendment.

As this court notes, a few other courts have chosen to recognize this exception. This court, however, refuses to consider it a viable warrant exception. It says this particular issue will remain unsettled. But it goes further, informing Wisconsin law enforcement that even if it were willing to consider this exception binding law, it wouldn’t change anything here.

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.

And why is that? Because a cop just allowed a dog to roam freely inside the car, not once, but twice. And this was captured by the officer’s dash cam.

The dashboard camera video shows that [Wisconsin State Police Sergeant] 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.

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.

As if that wasn’t enough violating of the Constitution, Al-Moghrabi did it again.

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 bodybetween 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.

The only “instinct” in play here was the officer’s belief that he could do this and get away with it. But he probably never expected someone charged with minor drug possession to take this case to trial and force he and his fellow officers to explain their actions and, in hopes of keeping their evidence, blame it all on the dog.

The court says, fine. You want to use the “instinct exception?” Well, let’s talk about your “training and expertise.”

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.

So, with nearly a decade’s-worth of training, Al-Moghrabi still couldn’t control his dog. That sounds like a failure in training, which isn’t a viable exception to the Fourth Amendment.

No evidence for you, says the court.

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.

This is the sort of thing that can get civilian dog owners cited for negligence or failure to control their animals. But when a cop does it, they expect the court to allow them to benefit directly from their failures. Fortunately, it didn’t happen here. The evidence is tossed, along with a citation for $673.50. And that dollar amount was apparently enough to encourage the state to spend thousands of dollars to secure an adverse ruling that pretty much eliminates the option of claiming “but the dog did it!” the next time this happens.