The Volokh Conspiracy

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Cert Petition Filed in United States v. Streett

A follow-up to my post last year on the inevitable discovery exception to the exclusionary rule.


Last October, I wrote a long post on a new Tenth Circuit decision, United States v. Streett, that applied the inevitable discovery exception to a defective warrant.  My post, Does the Inevitable Discovery Exception Include Imagined Revised Attempts to Get Warrants?, argued that the decision was wrong and conflicted with Supreme Court caselaw.

I am pleased to learn that an excellent cert petition was filed yesterday in the case by Counsel of Record Tobias Loss-Eaton of Sidley Austin.  Here's the Question Presented:

Before government agents can search a private home, the Fourth Amendment generally requires them to obtain a warrant supported by probable cause. Here, officers applied for, received, and executed a search warrant based on an affidavit that contained no link at all between petitioner and the address they wanted to search. The courts below agreed, and the government conceded, that the warrant did not establish probable cause, so the search was unconstitutional. But the Tenth Circuit still let the government use the resulting evidence because, it reasoned, if the magistrate had instead denied the warrant application and pointed out the defects, the government likely would have submitted a revised application that would have established probable cause, and a valid warrant would have issued.

The question presented is: Whether the inevitable-discovery doctrine applies to save evidence obtained through an unconstitutional warrant because, hypothetically, if the magistrate had denied the warrant application and pointed out the defects, the government could have fixed them and obtained a valid warrant.

The Supreme Court has not heard a Fourth Amendment case in a few years.  And exclusionary rule cases are particularly tricky, as you never know when a narrow case might raise bigger issues that some Justices skeptical of the exclusionary rule might want to take on.  Still, this is a strong petition on a case that is worth following. As always, stay tuned.