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Court of appeals: warranted search attenuated from alleged illegal entry

State v. Andrew S. Sato, 2015AP1815-CR, 10/18/2016, District 1 (not recommended for publication); case activity (including briefs)

Police investigating an armed robbery the previous evening learned their suspect was at home in his apartment. One officer initiated a “knock and talk,” banging on the front door of the apartment and yelling for five to ten minutes while another officer positioned himself outside near the apartment’s bedroom window. After that second officer heard loud noises, the first kicked in the door and arrested Sato. The officers then went and got a search warrant for the apartment, which turned up evidence of the crime.

The court of appeals assumes without deciding that the warrantless entry was illegal, either because the outside officer entered the apartment’s curtilage or because there were no exigent circumstances to justify going into the apartment. (¶21). However, it concludes, as did the trial court, that the warranted search was sufficiently attenuated from any illegality so as not to be the fruit of police lawlessness.

The familiar test to determine if the taint of a constitutional violation has been sufficiently purged considers three factors: (1) the temporal proximity of the arrest and the evidence in question; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official’s misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Here, the parties agree the first factor is of minimal importance. (¶24). As to intervening circumstances, the court of appeals notes that the officers obtained a warrant for their search and, importantly, did not rely on evidence obtained by the prior entry in the application for that warrant. (¶25).

The third factor generates the most discussion, with Sato arguing the officers engaged in flagrant misconduct by (1) omitting from the warrant application that they had already entered the apartment and (2) using the “knock and talk” procedure to circumvent the warrant requirement in the first place.  As to the latter, the court of appeals stresses the potential danger of the situation:

Here, the police were investigating a reported armed robbery with a firearm that had been committed only hours earlier by a person still at large. At the exact same time they acquired compelling evidence that Sato had been the perpetrator of the alleged crime, they also learned that not only did he live in the adjacent apartment to where they were interviewing a potential witness, S.Z., but also that he was home at that exact moment. Moreover, the officers had knowledge of Sato’s prior violent criminal behavior, and there was reason to believe that Sato may be armed. There is no doubt that the mere sense of urgency revealed by these facts does not excuse any unlawful misconduct which we again assume occurred for the purpose of this analysis; however, that sense of urgency is a factor to weigh in our decision as to whether the exclusionary rule applies here.

(¶27). Regarding the failure to note the prior entry, the court of appeals, in a somewhat puzzling passage, squeezes a great deal of meaning out of the word “then” to conclude that the warrant application did communicate that the officers had been in the apartment. (¶¶28-29).

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