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Cops in home with PC to arrest not required to leave on withdrawal of consent

State v. Thomas D. Dowling, 2016AP838-CR, 10/26/16, District II (one-judge; ineligible for publication); case activity (including briefs)

This is an ineffective assistance claim against Dowling’s trial counsel for not moving to suppress evidence obtained after Dowling told police officers–whom his wife had allowed into their apartment–to leave.

A neighbor had called 911 reporting a domestic disturbance, telling police she heard slamming doors, yelling and screaming. The caller was specifically concerned about whether Dowling’s wife was okay. When police knocked on Dowling’s door, it was answered by his wife and a different neighbor who had come over to calm Dowling down. (¶¶4-5).

The wife allowed the police in. The police called Dowling’s name and he emerged from elsewhere in the apartment. He was agitated and apparently intoxicated, and told the officers to leave. They did not, instead separating him from the wife and, after he continued to yell, arresting him for disorderly conduct. (¶¶14-15).

Dowling contends that his trial counsel should have moved to suppress evidence obtained after he asked police to leave, relying on Georgia v. Randolph, 547 U.S. 103 (2006), which held that where two occupants of a residence are present and one objects to entry by police while the other consents, the objecting occupant’s wishes prevail and police may not constitutionally enter.

The court of appeals takes a curious approach to rejecting Dowling’s claim. It notes good reason to believe Dowling acted in a disorderly manner in the officers’ presence before telling them to leave, and also holds that the officers had probable cause to arrest him even before they encountered him (on account of the neighbors’ reports). (¶26, ¶27). Either of these determinations would seem to dispose of the claim simply and efficiently; the court nevertheless relies on the old (and questionable) saw that defense counsel cannot be ineffective for failing to “argue a point of law that is unclear.” State v. Thayer, 2001 WI App 51, ¶14, 241 Wis. 2d 417, 626 N.W.2d 811. (¶23). The court notes factual differences between this case and Randolphthat police arrested Dowling, rather than search his apartment, and that Dowling objected to their entry not immediately at the threshold but later, once they were already inside. (¶29). Because this case is not factually all fours with Randolph, the court concludes that trial counsel was not required to move to suppress based on that case. (¶32).

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