Attorneys for a Fargo man who was arrested when police took a drug-sniffing dog into his apartment complex without a warrant are deciding whether to appeal their case to the U.S. Supreme Court.

The North Dakota Supreme Court refused to reconsider the case of Matthew Nguyen on Wednesday. Nguyen was arrested in December 2012, and charged with possession of marijuana with intent to deliver and possession of drug paraphernalia.

Defense attorney Mike Friese said Thursday that an appeal to the nation’s highest court was likely, but “we’re evaluating our options.” Nguyen’s lawyers have 90 days to petition the U.S Supreme Court.

A judge initially barred evidence collected from Nguyen’s apartment, but the state’s highest court overruled that decision in December 2013, saying that Nguyen could not expect the common hallways of the apartment building to be free from any intrusion, including the search by police. Nguyen’s attorneys then asked the state Supreme Court to reconsider the case, but it declined on Wednesday.

The investigation began after a resident called police in November 2012, to complain about an odor of marijuana on the second floor of the complex. The officers were unable to pinpoint the source of the smell, so the building was “added to a list of properties to be investigated further,” court documents show.

Two officers in plain clothes, including one from the canine unit, returned to the apartment on Dec. 9, 2012. The officers got in the secured facility when one of the officers grabbed the door after a woman opened it to enter or leave.

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