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.

Comments

[Rev. Arthur L. Kirkland]

That brief links to something written by Orin Kerr -- but identifies it as published by Reason, not by the Volokh Conspiracy:

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OTHER AUTHORITIES

17 16 1 Orin S. Kerr, Does the Inevitable Discovery Exception Include Imagined Revised Attempts to Get Warrants?, Reason (Oct. 9, 2023), https://shorturl.at/qAES6 .........

Interesting. It appears a half-dozen or so mainstream law schools aren't the only ones who would prefer not to be associated with the Volokh Conspiracy these days.

[Noscitur a sociis]

I’m a little surprised that the court took this course instead of relying on the good faith exception, which seems like a much more straightforward way to affirm.

[Davy C]

I'm thinking the good faith doctrine doesn't apply if the affidavit "contained no link at all between petitioner and the address they wanted to search."

[The Margrave of Azilia]

A search based on a warrant drawn up in an alternate universe? A truly concept doctrine!

[The Margrave of Azilia]

cosmic, not concept

[Lee Moore]

Yes indeed. I was wondering why this idea might not be extended a bit.

Suppose the cops had not bothered with a warrant at all and just gone ahead with the search anyway. Would it still not be the case that in the alternative universe they coulda woulda shoulda gone and got a valid warrant , so no harm no foul, the evidence is good ?

[TheAmazingEmu]

I used to be excited when the Supreme Court took Fourth Amendment cases. Now the concept terrifies me. I'm always worried it's an opportunity to make more bad law.