Petition for Writ of Certiorari — Dontae Callen, Petitioner v. Alabama

No. _____________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

__________________________________________________

DONTAE CALLEN, Petitioner,

v.

STATE OF ALABAMA, Respondent.

__________________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE ALABAMA COURT OF CRIMINAL APPEALS

__________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________

ALICIA A. D’ADDARIO

Counsel of Record

BENJAMIN H. SCHAEFER

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

adaddario@eji.org

bschaefer@eji.org

March 21, 2019

Counsel for Petitioner

CAPITAL CASE

QUESTIONS PRESENTED

I.

Where an affidavit does not support a finding of probable cause for the issuance

of a search warrant, does the Fourth Amendment allow a reviewing court, in

evaluating whether there was probable cause for the search, to consider

information from an affidavit for a separate search that may have been before

the magistrate?

II.

Additionally, given that a non-unanimous jury recommendation authorized Mr.

Callen’s death sentence, should this Court hold his petition pending the result

in Ramos v. Louisiana, No. 18-5924, 2019 WL 1231752 (U.S. Mar. 18, 2019),

which asks whether the Fourteenth Amendment fully incorporates the Sixth

Amendment guarantee of a unanimous verdict?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RELEVANT CONSTITUTIONAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A.

FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B.

PROCEEDINGS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I.

REVIEW SHOULD BE GRANTED TO DETERMINE IF AN

APPELLATE COURT, WHEN DETERMINING WHETHER

PROBABLE CAUSE EXISTED FOR THE ISSUANCE OF A

SEARCH WARRANT, MUST RELY ON THE SOLE AFFIDAVIT

SUBMITTED IN SUPPORT OF THE SEARCH OR CAN

CONSIDER AN AFFIDAVIT SUBMITTED IN SUPPORT OF A

DIFFERENT SEARCH... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II.

THIS COURT SHOULD HOLD THIS PETITION PENDING THE

RESULT IN RAMOS V. LOUISIANA, WHICH COULD

IMPLICATE THE CONSTITUTIONALITY OF THE NONUNANIMOUS JURY VERDICT THAT AUTHORIZED MR.

CALLEN’S DEATH SENTENCE... . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

APPENDIX A

Alabama Court of Criminal Appeals opinion, Callen v. State, No.

CR-13-0099, 2017 WL 1534453 (Ala. Crim. App. Apr. 28, 2017).

ii

APPENDIX B

Alabama Court of Criminal Appeals opinion, Callen v. State, No.

CR–13–0099, 2017 WL 3446533 (Ala. Crim. App. Aug. 11, 2017),

and order denying rehearing on December 8, 2017.

APPENDIX C

Alabama Supreme Court order denying certiorari, Ex parte Callen,

No. 1170219 (Ala. Nov. 16, 2018).

iii

TABLE OF CITED AUTHORITIES

CASES

United States v. Abdul-Ganiu, 480 Fed. Appx. 128 (3d Cir. 2012).. . . . . . . . . . . . . 12

Aguilar v. Texas, 378 U.S. 108 (1964).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Alabama v. White, 496 U.S. 325 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Anderson, 453 F.2d 174 (9th Cir. 1971). . . . . . . . . . . . . . . . . . . . . 11

Apodaca v. Oregon, 406 U.S. 404 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Berry, 565 F.3d 332 (6th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . 11

Callen v. State, No. CR-13-0099, 2017 WL 1534453 (Ala. Crim. App.

Apr. 28, 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 10, 11

Callen v. State, No. CR–13–0099, 2017 WL 3446533 (Ala. Crim. App.

Aug. 11, 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Ex parte Callen, No. 1170219 (Ala. Nov. 16, 2018). . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7

Coolidge v. New Hampshire, 403 U.S. 443 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Cordero-Rosario, 786 F.3d 64, 72 (1st Cir. 2015).. . . . . . . . . . . . . 12

United States v. Dudek, 560 F.2d 1288 (6th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . 12

United States v. Fogarty, 663 F.2d 928 (9th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . 12

United States v. Frazier, 423 F.3d 526 (6th Cir. 2005).. . . . . . . . . . . . . . . . . . . 11, 12

Illinois v. Gates, 462 U.S. 213 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10

Green v. Fisher, 565 U.S. 34 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Hurst v. State, 202 So. 3d 40 (Fla. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Johnson v. Louisiana, 406 U.S. 366 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Kaiser v. Lief, 874 F.2d 732 (10th Cir. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iv

Lockett v. Ohio, 438 U.S. 586 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Luong, 470 F.3d 898 (9th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . 13

Piccioli v. United States, 390 U.S. 202 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Ramos, 231 So. 3d 44 (La. Ct. App. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . 14

People v. Scott, 227 P. 3d 894 (Colo. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Serao, 367 F.2d 347 (2d Cir. 1966). . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Solomon, 432 F.3d 824 (8th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . 11

Sovereign News Co. v. United States, 690 F.2d 569 (6th Cir. 1982). . . . . . . . . . . . 12

STATUTES

28 U.S.C. § 1257(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

v

____________________________________________

PETITION FOR WRIT OF CERTIORARI

____________________________________________

Dontae Callen respectfully petitions for a writ of certiorari to review the

judgment of the Alabama Court of Criminal Appeals.

OPINIONS BELOW

The opinion of the Alabama Court of Criminal Appeals affirming Mr. Callen’s

convictions and remanding for the trial court to make specific findings of fact

concerning two of the aggravating circumstances, Callen v. State, No. CR-13-0099,

2017 WL 1534453 (Ala. Crim. App. Apr. 28, 2017), is attached at Appendix A. The

opinion of the Alabama Court of Criminal Appeals affirming Mr. Callen’s sentence,

Callen v. State, No. CR–13–0099, 2017 WL 3446533 (Ala. Crim. App. Aug. 11, 2017),

and that Court’s order denying Mr. Callen’s application for rehearing on December 8,

2017, are attached at Appendix B. The order of the Alabama Supreme Court denying

Mr. Callen’s petition for a writ of certiorari, Ex parte Callen, No. 1170219 (Ala. Nov.

16, 2018), is unreported and attached at Appendix C.

JURISDICTION

On April 28, 2017, the Alabama Court of Criminal Appeals affirmed Mr. Callen’s

convictions, Callen v. State, No. CR-13-0099, 2017 WL 1534453 (Ala. Crim. App. Apr.

28, 2017), and on August 11, 2017, the same court affirmed Mr. Callen’s death

sentence, Callen v. State, No. CR–13–0099, 2017 WL 3446533 (Ala. Crim. App. Aug.

11, 2017). On December 8, 2017,the Court of Criminal Appeals denied rehearing. On

1

November 16, 2018, the Alabama Supreme Court denied Mr. Callen’s petition for a

writ of certiorari. Ex parte Callen, No. 1170219 (Ala. Nov. 16, 2018). On February 6,

2019, Justice Thomas extended the time for filing this petition for a writ of certiorari

to March 21, 2019. Jurisdiction is invoked pursuant to 28 U.S.C. § 1257(a).

RELEVANT CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no warrants shall issue, but upon probable cause, supported by oath

or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.

The Sixth Amendment to the United Stats Constitution provides in pertinent

part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury . . . .

The Fourteenth Amendment to the United States Constitution provides in

pertinent part:

No State shall . . . deprive any person of life, liberty, or property, without

due process of law . . . .

2

STATEMENT OF THE CASE

This is a case in which the death penalty has been imposed. On May 27, 2011,

Dontae Callen was indicted on three counts of capital murder pursuant to Alabama

Code sections 13A-5-40(a)(9),(10),(15), in connection with the deaths of Bernice Kelly,

Quortes Kelly, and Aaliyah Budgess. (C. 131.)1 On July 11, 2013, Mr. Callen was

convicted on all counts. (C. 665-67.) The next day, the jury returned an 11-1

recommendation for a sentence of death. (C. 668.) On September 4, 2013, the trial

court sentenced Mr. Callen to death. (C. 123.)

A.

FACTUAL BACKGROUND

Dontae Callen was born to a mother who suffered from posttraumatic stress

disorder, depression, and anxiety as a result of being sexually and physically abused

by her father when she was a child. (C. 1046-50.) She had an IQ of 70, struggled to

form relationships, and became addicted to drugs. (C. 1048-49; R. 65.)

When Dontae was a young child, his mother repeatedly abandoned him and his

siblings. (C. 1001, 1557, 1754; R. 1051-53, 1057, 1076.) She would often just leave

Dontae on his grandmother’s porch and take off. (R. 1060.) At one point, she told the

Department of Human Resources (DHR) that she did not want custody of her children.

(R. 65.) When abandoned by his mother, Dontae bounced between the homes of

different relatives, who would put him out when they did not have the money to care

for him or did not want him around. (R. 1053-55, 1068, 1076-77.) Throughout Dontae’s

1

“C.” refers to the clerk’s record; “R.” refers to the trial record; and “SH.” refers to the

record of the suppression hearing.

3

childhood, DHR held 13 hearings to try to figure out where he could live. (R. 65.)

During the limited periods when Dontae’s mother would allow him to move back in,

she or her significant others would physically abuse him and then abandon him again.

(C. 1062, 1150.)

Dontae was essentially left to raise himself. (R. 1051-53, 1057.) At different

times throughout his childhood, he went without a bed (C. 1316, 1334, 1557), clothes

(C. 1001-02), and food (C. 993, 1557). When he was 11 years old, a neighbor called

DHR because Dontae was hungry and begging him for food. (C. 993.)

Dontae attended multiple schools, had multiple learning disabilities, and

received consistently failing grades. (R. 65-66.) A fifth grade achievement test placed

him “in the very low level of academic capability.” (R. 53, 55.) At school, “other kids

called [him] stupid and a bitch.” (R. 64.) At the age of 16, he received an IQ score of

69. (C. 2074; R. 40-41.) He repeated both the tenth and eleventh grades and failed the

Alabama graduation test both times he took it. (R. 53-54.) He never read a book cover

to cover, did not understand decimals or fractions, could not do long division, and could

not write a paper. (R. 63-64.) He also was unable to count by threes (one, four, seven,

etc.). (R. 61-62.)

In terms of his mental health, Dontae was diagnosed with “significant

depression” at the age of 12. (C. 1026.) He also suffered from posttraumatic stress

disorder, severe anxiety disorder, and dissociative disorder but received no treatment.

(R. 1088, 1099-1105.)

As a result of these disorders, Dontae would slip into a

dissociative state when he was being sexually abused, which happened often. (R.

4

1106.) His 33-year-old cousin, Quortes Kelly, sexually molested him on multiple

occasions, including in the early morning hours of October 29, 2010. (C. 597, 602.)

That same morning, the fire department responded to smoke emanating from

Dontae’s aunt’s apartment and found her, Mr. Kelly, and 12-year-old Aaliyah Budgess.

(R. 442-53.) Each had been stabbed more than 15 times and died from those wounds.

(R. 580, 596, 601, 612, 635, 637.) The police collected evidence from the scene and

surrounding areas. (SH. 11-12.) The police also sought and obtained a search warrant

for Mr. Callen’s residence based on an affidavit consisting of statements by

unidentified sources that Mr. Callen had been near the crime scene at some point. (C.

585-86.) They searched Mr. Callen’s residence and collected clothes and shoes. (R.

524-27.)

Dontae accompanied his family to the hospital to check on his aunt and cousins.

(R. 1061-62.) After he was taken into custody, he told the police that he had recently

turned 18 years old, that he had no criminal history, and that he had not finished high

school. (C. 1947, 1972, 1976.) He said that he had nothing to do with his relatives’

deaths (C. 1947-91), and that another man had been visiting with Quortes Kelly when

he left the apartment the night before (C. 1962-63). He also repeatedly attempted to

invoke his right to remain silent. (C. 1961, 1967, 1969, 1970, 1971, 1979; Disc 1,

1:17:35.) The police purposefully ignored these attempts and alternately threatened

him and suggested that they might help him. (C. 1981, 1983; SH. 46, 49-50.)

When Mr. Callen requested an attorney, the police handcuffed him behind his

5

back, limited his access to basic needs, and gave him inconsistent and confusing

information as to whether he could obtain an attorney. (C. 1996, 2010, 2016.) He was

kept in the interrogation room for a total of ten hours, and the police refused to tell him

when he would be moved. (C. 2014.) Periodically, the police swabbed Mr. Callen’s

hands, nails, cheeks, forearm, and ear, cut his hair, and exposed him to an alternate

light source. (C. 574, 1999; SH. 52.) The police also told Mr. Callen that he was lucky

they had not chopped his head off. (C. 2018-19.)

Mr. Callen eventually gave an inculpatory statement. (C. 2021.) He told the

police that he loved his relatives and did not mean to kill them (C. 2025), that it was

“like it wasn’t me doing it,” (C. 2029), and that he could not remember much of what

happened (C. 2027, 2028, 2029, 2031, 2033). His little cousin Aaliyah had been like

a sister to him, and he had always tried to protect her. (R. 1056, 1059.) Mr. Callen

was subsequently charged with capital murder of two or more persons and of a person

under the age of 14, as well as capital murder during an arson. (C. 131.)

B.

PROCEEDINGS BELOW

Prior to trial, Mr. Callen moved to suppress the items seized from his residence

because the search warrant was not based upon sufficient probable cause. (C. 556.)

The trial court denied the motion. (C. 102; R. 380, 384.)

At trial, the State presented clothes, shoes, and a pillow case seized from Mr.

Callen’s residence (C. 793-826; R. 523-29), as well as mittens, knives, a sheet, and a

towel found near the scene and a swab from Mr. Callen’s ear (C. 768-89; R. 514-23).

6

The State’s forensic scientist testified that there was a high probability that the blood

found on various articles of clothing from Mr. Callen’s residence was contributed by

Quortes Kelly (R. 764-78), and that the blood on one of the knives was contributed by

the three victims (R. 761-62). She also testified that there was a high probability that

the blood in Mr. Callen’s ear was contributed by Mr. Callen and Mr. Kelly. (R. 779-82.)

The State also presented the incriminating portion of Mr. Callen’s statement to police.

(R. 847-48.)

On appeal, Mr. Callen argued that the trial court’s failure to suppress the fruits

of the search of his residence violated his right to be free from unreasonable searches

and seizures. The Alabama Court of Criminal Appeals held that a separate affidavit

in support of a different search, which was submitted to the same magistrate, provided

sufficient probable cause for the search of the residence. Callen v. State, No. CR-130099, 2017 WL 1534453, at *21-22 (Ala. Crim. App. Apr. 28, 2017).

The Alabama

Supreme Court denied Mr. Callen’s petition for writ of certiorari. Ex parte Callen, No.

1170219 (Ala. Nov. 16, 2018).

7

REASONS FOR GRANTING THE WRIT

I.

REVIEW SHOULD BE GRANTED TO DETERMINE IF AN APPELLATE

COURT, WHEN DETERMINING WHETHER PROBABLE CAUSE

EXISTED FOR THE ISSUANCE OF A SEARCH WARRANT, MUST RELY

ON THE SOLE AFFIDAVIT SUBMITTED IN SUPPORT OF THE

SEARCH OR CAN CONSIDER AN AFFIDAVIT SUBMITTED IN

SUPPORT OF A DIFFERENT SEARCH.

The Fourth Amendment to the United States Constitution prohibits

“unreasonable searches and seizures” and requires that “no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. To

determine whether there is probable cause, a magistrate must decide “whether, given

all of the circumstances set forth in the affidavit before him, . . . there is a fair

probability that contraband or evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983).

At some point during the morning of October 29, 2010, Detective Williams of the

Birmingham Police Department submitted an application and affidavit requesting a

search warrant for 561 41st Street North in Birmingham, Alabama. (C. 585.) In the

affidavit, Detective Williams relayed that investigators confirmed with Natasha Brown

that she lived at the aforementioned address, that Dontae Callen lived with her, and

that he had changed his clothes that morning. (C. 585.) The following statement in

the affidavit was the sole mention of any connection between Mr. Callen and the crime:

Following interviews with witnesses, Dantay [sic] CALLEN (B/M, DOB:

8/27/92) was indentified [sic] as a possible suspect and was seen by

witnesses near the residence prior to the fire.

8

(C. 585.)

Based on the affidavit, the magistrate issued a search warrant for the residence.

(C. 586.) At trial, the prosecution moved to introduce clothes, shoes, and a pillow case

seized from the residence. (C. 793-826; R. 523-29.) The defense filed a motion to

suppress the clothes seized from the residence because “the Affidavit did not present

sufficient probable cause.” (C. 556.) The trial court denied the motion (C. 102; R. 380,

384), and the prosecution used these items to connect Mr. Callen to the crime (R. 76678).

Reviewing courts must examine the totality of the circumstances in determining

whether an affidavit adequately supports a finding of probable cause. Gates, 462 U.S.

at 238. Highly relevant to this determination are the veracity, reliability, and basis

of knowledge of the sources of information in the affidavit. See, e.g., Alabama v. White,

496 U.S. 325, 328 (1990).

Here, Detective Williams’s affidavit, which was the only evidence presented by

the State in support of a finding of probable cause for the search of the residence,

contained no information as to the veracity, reliability, or basis of knowledge of the

“witnesses” who identified Mr. Callen as a possible suspect and saw him near the scene

of the crime. (C. 585.) The affidavit contained no information about who these sources

were, whether they were reliable, or on what their opinions were based. (C. 585.) The

affidavit also did not specify when the sources observed Mr. Callen near the scene. (C.

585.) All the affidavit conveyed was that people saw Mr. Callen, a relative of the

9

victims who lived a few blocks away from them, near the scene at some point prior to

the fire. (C. 585.) The affidavit’s “mere conclusory statement [gave] the magistrate

virtually no basis at all for making a judgment regarding probable cause,” and thus the

resulting search violated the Fourth Amendment. Gates, 462 U.S. at 239; Aguilar v.

Texas, 378 U.S. 108, 114-15 (1964) (finding inadequate officer’s statement that

“affiants have received reliable information from a credible person and do believe that

[drugs] are being kept at the above described premises”), abrogated on other grounds

by Gates, 462 U.S. at 230.

The Alabama Court of Criminal Appeals found that a separate affidavit for the

collection of biological samples had been presented to the same magistrate prior to

issuance of the warrant to search the residence. Callen v. State, No. CR-13-0099, 2017

WL 1534453, at *21 (Ala. Crim. App. Apr. 28, 2017). The lower court found that this

affidavit for biological samples stated that Mr. Callen had a red liquid substance in his

ear and wounds and scratches on his neck. Id.2 The lower court held that this

information, in combination with the report from unidentified witnesses that Mr.

2

At 1:50 p.m., the magistrate issued a warrant to Detective Cynthia Morrow for the

collection of biological samples from Mr. Callen. (C. 587.) On the warrant, the

magistrate noted that she issued a warrant for the collection of biological samples at

11:50 a.m. but then voided it because it contained “unreliable information.” (C. 587.)

The magistrate also noted that the second warrant relied on the same information as

the first warrant - that Mr. Callen had what appeared to be a red liquid substance in

his ear and wounds and scratches on his neck - minus the unreliable information. (C.

587.) The original warrant for the collection of biological samples was not presented

at the suppression hearing or included in the record, apparently because it was

destroyed by the police. (C. 573, 578; R. 379.)

10

Callen was near the scene of the crime, rose to the level of probable cause to search the

residence. Id. at *22.

The lower courts generally agree that “[t]he review of the sufficiency of the

evidence supporting probable cause is limited to the information presented in the four

corners of the affidavit.” United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009); see

also, e.g., United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005) (same); United

States v. Anderson, 453 F.2d 174, 175 (9th Cir. 1971) (same). However, the lower

courts are divided over whether that review must be limited to the affidavit submitted

in support of the search or can include additional affidavits submitted in support of

other searches or arrests. The better-reasoned view, applied in cases in three federal

circuits, is that an affidavit requesting a particular warrant must be evaluated

individually to determine whether that affidavit supports a finding a probable cause

for issuance of that particular warrant.

In United States v. Frazier, 423 F.3d 526 (6th Cir. 2005), a police officer

submitted six separate affidavits in support of his request for warrants for six separate

searches. Id. at 530. The affidavits were missing information critical to a finding of

probable cause, and the magistrate directed the officer to add the information to each

of the affidavits. Id. The officer added the information to the first five affidavits but

not to the sixth, and the magistrate issued all six warrants. Id. The Sixth Circuit

noted that “a judge’s initial probable cause determination is limited to the four corners

of the affidavit.” Id. at 535. Because the necessary information was not contained in

11

the sixth affidavit, the warrant issued based on that affidavit did not meet the Fourth

Amendment’s probable cause requirement. Id. at 533; see also United States v.

Cordero-Rosario, 786 F.3d 64, 72 (1st Cir. 2015) (finding neither of two affidavits

established probable cause based on analyzing each independently); United States v.

Abdul-Ganiu, 480 Fed. Appx. 128, 130 (3d Cir. 2012) (evaluating second affidavit

independent of first affidavit where second affidavit failed to incorporate the earlier

warrant); but see Sovereign News Co. v. United States, 690 F.2d 569, 575 (6th Cir.

1982) (finding probable cause can “be established by reading related affidavits in

conjunction”); United States v. Dudek, 560 F.2d 1288, 1292-93 (6th Cir. 1977) (same).

At the same time, other federal and state courts, joined now by the Alabama

court below, have considered all of the affidavits before a magistrate in determining

whether probable cause existed for the issuance of a particular warrant. In Kaiser v.

Lief, 874 F.2d 732 (10th Cir. 1989), the magistrate was presented with a complaint in

support of a search warrant and a complaint in support of an arrest warrant. Id. at

733. While holding that the complaint in support of the search warrant established

probable cause, the Tenth Circuit also stated that “the magistrate could rely on the

facts contained in the complaint on which the arrest warrant was based in making the

determination on probable cause to issue the search warrant.” Id. at 735; see also

United States v. Fogarty, 663 F.2d 928, 930 (9th Cir. 1981) (noting that magistrate

could rely on arrest warrant affidavit for facts necessary to constitute probable cause

for search warrant); United States v. Serao, 367 F.2d 347, 350 (2d Cir. 1966) (holding

12

that commissioner could consider information from all affidavits before him as support

for probable cause to search apartment), remanded for further consideration on other

grounds by Piccioli v. United States, 390 U.S. 202 (1968); People v. Scott, 227 P.3d 894,

897 (Colo. 2010) (finding that affidavit for initial search of residence could be

considered in combination with second affidavit for subsequent search in determining

whether probable cause existed for subsequent search).

In weighing whether to issue a search warrant, a magistrate considers the

information presented in support of a finding of probable cause for that particular

search. See, e.g., United States v. Luong, 470 F.3d 898, 904 (9th Cir. 2006) (“[A]ll data

necessary to show probable cause for the issuance of a search warrant must be

contained within the four corners of a written affidavit given under oath.”) (citation

omitted). Presuming the magistrate considered information presented in support of

warrants for other searches and arrests undermines the strong protection from

unreasonable searches written into the Constitution. See Coolidge v. New Hampshire,

403 U.S. 443, 455 (1971) (noting that changes since authoring of fundamental

constitutional concepts “have made the values served by the Fourth Amendment more,

not less, important”).

Currently, if a magistrate is presented with an affidavit that does not support

a finding of probable cause but is also presented with a second affidavit for a separate

warrant that contains additional information, the constitutional consequences for the

defendant turn on where he or she happens to be tried. This Court should grant

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certiorari to address this issue and resolve the split in the courts below.

II.

THIS COURT SHOULD HOLD THIS PETITION PENDING THE RESULT

IN RAMOS V. LOUISIANA, WHICH COULD IMPLICATE THE

CONSTITUTIONALITY OF THE NON-UNANIMOUS JURY VERDICT

THAT AUTHORIZED MR. CALLEN’S DEATH SENTENCE.

Mr. Callen was sentenced to death based on the jury’s 11 to 1 verdict. (C. 123,

668.) This Court recently granted a certiorari in Ramos v. Louisiana to determine

“[w]hether the Fourteenth Amendment fully incorporates the Sixth Amendment

guarantee of a unanimous verdict.” Petition for Writ of Certiorari, Ramos v. Louisiana,

No. 18-5924, 2019 WL 1231752 (Sept. 7, 2018).

In State v. Ramos, 231 So. 3d 44 (La. Ct. App. 2017), the Louisiana Fourth

Circuit Court of Appeal relied upon Apodaca v. Oregon, 406 U.S. 404 (1972), in holding

that a non-unanimous guilty verdict in second-degree murder trial was constitutional.

Ramos, 231 So. 3d at 53-54. In the controlling opinion in Apodaca, Justice Powell

recognized that “unanimity is one of the indispensable features of federal jury trial,”

Johnson v. Louisiana, 406 U.S. 366, 369 (1972) (Powell, J., concurring in judgment),

but held that this feature was not required in state criminal trials, id. at 373.

Should this Court grant relief to the petitioner in Ramos, this will likely have

implications for the constitutionality of the jury’s non-unanimous vote to sentence Mr.

Callen to death. See, e.g., Lockett v. Ohio, 438 U.S. 586, 604 (1978) (“We are satisfied

that this qualitative difference between death and other penalties calls for a greater

degree of reliability when the death sentence is imposed.”); see also Hurst v. State, 202

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So. 3d 40, 59 (Fla. 2016) (finding non-unanimous jury recommendations of death

violate Sixth and Eighth Amendments); id. at 61 (“Florida is one of only three [states]

that does not require a unanimous jury recommendation for death.”). Unless this

Court holds Mr. Callen’s petition pending the decision in Ramos, Mr. Callen will face

significant procedural obstacles to challenging the constitutionality of the nonunanimous jury verdict in his case based on that decision. See Green v. Fisher, 565

U.S. 34, 38 (2011) (holding that “clearly established Federal law” limited to this Court’s

precedents at time of state court’s decision on direct appeal); see also id. at 41 (noting

that petitioner missed “two obvious means of asserting his claim,” including filing

petition for writ of certiorari requesting remand in light of intervening decision).

Mr. Callen therefore requests that this Court hold this petition pending the

decision in Ramos and then grant, vacate, and remand for consideration of that

decision by the Alabama courts.

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CONCLUSION

For the foregoing reasons, Petitioner prays that this Court grant a writ of

certiorari to the Alabama Court of Criminal Appeals.

Respectfully Submitted,

/s/ Alicia A. D’Addario

ALICIA A. D’ADDARIO

Counsel of Record

BENJAMIN H. SCHAEFER

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

adaddario@eji.org

bschaefer@eji.org

March 21, 2019

Counsel for Petitioner

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