COURT: DOG'S DRUG SNIFF IS LEGAL

Pot Was Found In Parked Car

Drug dog sniffs are not unconstitutional searches, the state's 4th Circuit
Court of Appeals ruled.

But one judge invited the state Supreme Court to take a look at the issue
because some states have not followed the federal precedent.

The three-judge panel upheld Iowa County Judge William Dyke's position
Thursday that the use of Cora, a dog trained to smell drug contraband,
violated neither the Fourth Amendment of the U.S. Constitution nor Article
I, Section 11 of the state constitution. It is not an issue on which the
state Supreme Court has ruled, Judge Charles Dykman wrote in the decision.

In 1983, the U.S. Supreme Court had held that a dog sniff is "much less
intrusive than a typical search," wrote Dykman. The federal ruling came in
a case involving a dog sniffing luggage at an airport.

"We therefore conclude that under the (U.S.) Supreme Court's interpretation
of the Fourth Amendment, dog sniffs are not searches," wrote Dykman. The
federal logic "that dog sniffs reveal only illegal conduct so they intrude
on no legitimate privacy interest would apply in any setting,"

The case grew out of a search of a Dodgeville duplex, for which police had
obtained a search warrant. Marijuana was discovered, and occupants were
arrested, handcuffed and taken to the police station. The officer handling
Cora was told to "check around the cars located in that area." Cora alerted
on the driver's side door of a car across the street. The officer again
walked Cora around the car. She alerted the second time. Cora "alerts" by
holding her breath and makes a scratching motion.

The door was unlocked, and the officer put Cora inside the car. He alerted
on a purse on the driver's seat. The officer opened it and found more
marijuana. Both the car and the purse belonged to Tina Miller, who was a
guest at the residence. Police didn't know she owned the car before it was
searched. Miller was charged with possessing a controlled substance.

Miller's lawyer raised the constitutional issue before Dyke. When he
rejected the motion, Miller pleaded no contest, and then appealed.

Because current law does not classify canine sniffs as searches under the
Fourth Amendment, the officer was not required to have probable cause or
reasonable suspicion before walking Cora around the car, Dykman wrote, but
he added that the officer did have probable cause to search the vehicle
once Cora alerted.

Cora's handler testified that she had conducted more than 100 sniffs. In 40
cases when she alerted on a car, illegal substances were found 35 times.

"Although Cora did not have a 100 percent rate of accuracy, probable cause
requires only that there is 'fair probability' that evidence of a crime
will be found," wrote Dykman. Also hearing the case were judges Margaret
Vergeront and David Deininger.

In addition to writing the decision, Dykman wrote a separate, concurring
opinion inviting the State Supreme Court to take up the case.

He wrote that one problem "in concluding that dog sniffs are not searches
is that it allows the police nearly absolute discretion in who and what
they may target. Such discretion has consequences for more than just the
guilty. Many law abiding individuals would feel uneasy at the prospect of
their cars or homes being sniffed at any time, or being subject to random
canine sniffs of their person in public places.

"Especially for members of minority groups, the risk that such techniques
could be used selectively is also worrisome when there are no
constitutional limitations, outside of a possible equal protection claim,
on when a dog sniff may be used."