Monday, May 12, 2008

Cert petition filed in Wallace case

Today my colleague Capt Vicki Belleau filed a cert petition seeking review of CAAF's decision in United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008).

The petition asks the Supremes to resolve a circuit split as to whether the inevitable discovery exception to the Fourth Amendment exclusionary rule is limited by a requirement that law enforcement agents be actively pursuing valid legal authority to search before conducting an invalid search and seizure. That issue also divided CAAF, with the majority finding invalid consent but rejecting an active pursuit requirement and applying inevitable discovery. In a concurring opinion, Judge Baker rejected inevitable discovery due to the absence of active pursuit, but found valid consent. Judge Ryan didn't reach the inevitable discovery issue because she agreed with Judge Baker's conclusion that there was valid consent.

Here's the Wallace QP:

When law enforcement agents seize evidence based on invalid consent, can the evidence be admitted under the inevitable discovery exception to the Fourth Amendment exclusionary rule on the basis of a subsequently obtained search warrant if the law enforcement agents neither applied for nor actively pursued the warrant before seizing the evidence?
The complete cert petition is available here.

[Disclaimer: I am one of petitioner's counsel.]

6 comments:

Marcus Fulton said...

Good cert petition. I'm left with "very significant split" ringing in my ears. Did you argue over how many times to go back to that well?

Hey, if you got it . . .

John O'Connor said...

The possibility of deciding he case on consent muddies the waters for this case on cert.

Anonymous said...

There is a significant continuity error/typo on Page 2, end of 1st paragraph under Statement of the Case. The short sentence, "The age," followed by a new paragraph ?

CAAFlog said...

Thank you, Anon. That should have read "The agents," but somehow the word got chopped into two in the middle. We'll try to fix that.

Anonymous said...

No problem. Probably just a computer glitch.

How much does it cost (taxpayers?)to do the binding for the SC?

Anonymous said...

What was it that they discovered?