Whether the inevitable discovery doctrine under the Fourth Amendment permits suppression of evidence to be excused based on a hypothetical warrant that law enforcement could have obtained if the original warrant was defective

No question identified. : APPLICATION FOR AN EXTENSION OF TIME Under this Court’s Rule 13.5, Applicant Bentley Streett respectfully requests a 30-day extension of time within which to file a petition for a writ of certiorari, to and including April 24, 2024. JUDGMENT FOR WHICH REVIEW IS SOUGHT The judgment for which review is sought is United States v. Streett, 83 F.4th 842 (10th Cir. 2023) (attached as Exhibit 1). JURISDICTION This Court will have jurisdiction over any timely petition under 28 U.S.C. § 1254(1). The Tenth Circuit issued its judgment on October 5, 2023 and then denied Mr. Streett’s timely rehearing petition on December 26, 2023. Thus, a petition to this Court is currently due by March 25, 2024. In accordance with Rule 13.5, this application is being filed more than 10 days before that date. REASONS JUSTIFYING AN EXTENSION OF TIME 1. This case involves an important question of Fourth Amendment law that implicates two circuit splits: Whether and how the doctrine applies to a defective warrant. This doctrine holds that evidence obtained in violation of the Fourth Amendment need not be suppressed if the government can prove “that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444 (1984). Below, the Tenth Circuit held that (i) the “inevitable discovery doctrine can apply to cases where a warrant was improperly issued” and (ii) suppression was not warranted because the police “likely ... would have” secured a non-defective warrant if the magistrate had denied the actual warrant application and pointed out their mistake—which never happened. Ex. 1 at 9, 14 (emphasis omitted). This decision warrants review for three reasons. First, the decision below conflicts directly with other federal and state appellate decisions, including the Second Circuit’s nearly contemporaneous ruling in United States v. Lauria, 70 F.4th 106 (2d Cir. 2023). Lauria held that inevitablediscovery doctrine did not apply on materially indistinguishable facts because the doctrine “does not ask whether the government lawfully could have obtained the evidence at issue by means of corrected warrant affidavits” if it had learned of the "defects in its initial affidavits.” Jd. at 124. “Rather, inevitable discovery asks whether the government has shown that it certainly would have discovered the evidence by a lawful means even if no warrant had been issued or challenged.” Id. (emphasis altered). Some state high courts likewise reject the kind of argument that the Tenth Circuit accepted below. See State v. Haidle, 285 P.3d 668, 677 (N.M. 2012). Inevitable discovery requires that the evidence “would have been otherwise discovered through a different and independent lawful means,” so in a defective-warrant case, it requires the government to point to a “method other than a search warrant.” See id.; see also State v. Handtmann, 437 N.W.2d 830, 838 (N.D. 1989) (“The State’s assertion that it would have obtained a lawful search warrant based upon the information subsequently discovered would emasculate the requirement for a search warrant under the Fourth Amendment.”); 6 LaFave, Search & Seizure § 11.4(a) (6th ed.) (explaining that Handtmann’s analysis is “quite correct ]”). Second, the decision below also implicates a broader split about “hypothetical warrants”: “[W]hen law enforcement fails to comply with some element of the warrant process at the outset, inevitable discovery gives the state an opportunity to argue it could have and would have obtained proper judicial signoff’—even if the failure to comply was a failure to secure any warrant at all, even a defective one. See Tonja Jacobi & Elliot Louthen, The Corrosive Effect of Inevitable Discovery on the Fourth Amendment, 171 Penn. L. Rev. 1, 34-35 (2022). Some courts reject these arguments categorically, others accept them, and still others take middle-ground approaches. See id. at 34-43 (cataloging these different approaches); comp