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COA: Consent to search apartment voluntary and attenuated from dog sniff

State v. Anthony S. Taylor, 2017AP587-CR, 12/21/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Police responded to a 911 call from S.M., Taylor’s girlfriend. She had been in a fight with another woman in the apartment building they all lived in. The other woman told the cops that she had gone with Taylor to pick up marijuana that day, that he was storing it in the apartment he shared with S.M., and that he may also have had a firearm. An officer testified he also knew Taylor had recently been the victim of a robbery and was a felon.

Officers standing outside the door of S.M. and Taylor’s apartment said they could smell marijuana coming from inside. They asked S.M. for consent to enter but she refused. They told her they would seek a warrant, but it could take up to three hours and that she would not be allowed inside the apartment during that time (though they did escort her in to retrieve her four-year-old son). Eventually, a drug dog arrived and alerted outside the apartment; S.M.’s mother also showed up and seemingly talked her into letting the officers in. They found pot. (¶¶2-10).

The court assumes without deciding that the dog sniff violated the Fourth Amendment but concludes that S.M.’s consent was voluntary and sufficiently attenuated from that illegality. The discussion of both issues is fact-intensive; suffice to say that the court does see being refused entry to one’s own apartment for hours to be terribly “coercive,” (¶17), and sees the mother’s persuasion, rather than the dog sniff, as the reason S.M. changed her mind after an hour. (¶27).

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