{"id":3772,"date":"2010-12-28T18:20:52","date_gmt":"2010-01-26T00:17:16","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-01-25T08:58:47","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3772","title":{"rendered":"AZ: Prior dog sniff of garage without knowledge to homeowner did not taint later consent"},"content":{"rendered":"

\u201cThe question presented is whether a resident’s consent to search her home is invalid because it was preceded by an allegedly illegal search of which the resident was unaware. We hold that the consent to search is valid under the circumstances.\u201d State v. Guillen<\/a>, 223 Ariz. 314, 223 P.3d 658 (2010):<\/p>\n

\u00b615 Assuming, without deciding, that the dog sniff violated Article 2, Section 8, we conclude that Mrs. Guillen’s consent was valid because under Brown’s three-factor test, intervening circumstances obviated any alleged taint and the first dog sniff conducted from outside the garage was not flagrant police misconduct.<\/p>\n

. . .<\/p>\n

\u00b617 Mrs. Guillen’s lack of knowledge of the dog sniff constitutes a major break in the causal chain. See, e.g., United States v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000) (“Lack of knowledge of a prior search is an intervening factor which dissipates the coercion inherent in a request for consent made after an unconstitutional search.”), rev’d on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001); United States v. Carson, 793 F.2d 1141, 1155 (10th Cir. 1986) (holding that a defendant waived his Fourth Amendment rights when he consented to search without knowledge of prior illegal police search); cf. Moran v. Burbine, 475 U.S. 412, 422, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986) (“Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”).<\/p>\n

\u00b615 Assuming, without deciding, that the dog sniff violated Article 2, Section 8, we conclude that Mrs. Guillen’s consent was valid because under Brown’s three-factor test, intervening circumstances obviated any alleged taint and the first dog sniff conducted from outside the garage was not flagrant police misconduct.<\/p>\n

\u00b616 Mrs. Guillen’s consent was obtained within a few hours after the dog sniff took place. Although this fact favors Guillen, see Delgadillo-Velasquez, 856 F.2d at 1300 (citing cases in which courts have held invalid consent given between a few minutes and a few hours after the illegal conduct), it does not weigh heavily in our analysis because of the presence of intervening circumstances. See State v. Reffitt, 145 Ariz. 452, 459, 702 P.2d 681, 688 (1985) (noting that the “factor of temporal proximity is scarcely outcome determinative” and “is often the least helpful of [Brown’s] three criteria”).<\/p>\n

\u00b617 Mrs. Guillen’s lack of knowledge of the dog sniff constitutes a major break in the causal chain. See, e.g., United States v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000) (“Lack of knowledge of a prior search is an intervening factor which dissipates the coercion inherent in a request for consent made after an unconstitutional search.”), rev’d on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001); United States v. Carson, 793 F.2d 1141, 1155 (10th Cir. 1986) (holding that a defendant waived his Fourth Amendment rights when he consented to search without knowledge of prior illegal police search); cf. Moran v. Burbine, 475 U.S. 412, 422, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986) (“Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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