Opposition Brief — Dontae Callen, Petitioner v. Alabama

No. 18-8593

CAPITAL CASE

═════════════════════════════════════

In the

Supreme Court of the United States

──────────────────────────────────

DONTAE CALLEN,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

──────────────────────────────────

On Petition for a Writ of Certiorari to the

Alabama Court of Criminal Appeals

═════════════════════════════════════

BRIEF IN OPPOSITION

═════════════════════════════════════

STEVE MARSHALL

Alabama Attorney General

Lauren A. Simpson

Assistant Attorney General

*Counsel of Record

OFFICE OF ALA. ATT’Y GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

lsimpson@ago.state.al.us

April 26, 2019

CAPITAL CASE

QUESTIONS PRESENTED

(Restated)

1.

Whether a search warrant to preserve forensic evidence was properly

issued when the magistrate, who had issued a similar search warrant

concerning the same subject less than an hour before on the basis of a

detailed and unquestionably adequate affidavit, issued the second

search warrant after receiving a less detailed affidavit.

2.

Whether this Court should hold Callen’s petition pending the result of

Ramos v. Louisiana, a wholly unrelated case.

i

TABLE OF CONTENTS

Questions Presented ........................................................................................... i

Table of Authorities .......................................................................................... iii

Introduction.........................................................................................................1

Statement of the Case ........................................................................................3

A.

The murder of Bernice Kelly, Quortes Kelly, and Aaliyah

Budgess .............................................................................................3

B.

The search warrants .......................................................................7

C.

The trial ........................................................................................ 10

D.

Post-trial and direct appeal .......................................................... 11

Reasons the Petition Should be Denied .......................................................... 12

I.

Certiorari is unwarranted as to Callen’s Fourth Amendment claim ....... 13

II.

This Court should not hold Callen’s petition pending the result of

Ramos v. Louisiana ............................................................................... 21

Conclusion ........................................................................................................ 23

ii

TABLE OF AUTHORITIES

Cases

Aguilar v. Texas,

378 U.S. 108 (1964) ................................................................................ 17

Apodaca v. Oregon,

406 U.S. 404 (1972) ................................................................................ 21

Callen v. State,

CR-13-0099, 2017 WL 1534453

(Ala. Crim. App. Apr. 28, 2017) ................................................. 11, 14–17

Callen v. State,

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

Crittenden v. State,

476 So. 2d 626 (Ala. Crim. App. 1983) .................................................. 16

Davis v. State,

500 So. 2d 472 (Ala. Crim. App. 1986) .................................................. 16

Ex parte Callen,

No. 1170219 (Ala. Nov. 16, 2018) .......................................................... 11

Ex parte Green,

15 So. 3d 489 (Ala. 2008) ....................................................................... 14

Harris v. Alabama,

513 U.S. 504 (1995) .......................................................................... 11, 22

Illinois v. Gates,

462 U.S. 213 (1983) .................................................................... 12, 14, 17

Johnson v. Louisiana,

406 U.S. 356 (1972) ................................................................................ 21

Jones v. United States,

362 U.S. 257 (1960) ................................................................................ 12

iii

Maddox v. State,

502 So. 2d 779 (Ala. Crim. App. 1985) .................................................. 15

Mayes v. State,

260 So. 2d 403 (Ala. 1972) ..................................................................... 16

Moore v. State,

650 So. 2d 958 (Ala. Crim. App. 1994) .................................................. 15

Oliver v. State,

238 So. 2d 916 (Ala. 1970) ..................................................................... 16

Poole v. State,

596 So. 2d 632 (Ala. Crim. App. 1992) .................................................. 15

Ring v. Arizona,

536 U.S. 584 (2002) ................................................................................ 22

Sovereign News Co. v. United States,

690 F.2d 569 (6th Cir. 1982).................................................................. 20

State v. Gonzalez,

891 P.2d 743 (Wash. Ct. App. 1995) ..................................................... 16

State v. Jansen,

549 P.2d 32 (Wash. Ct. App. 1976) ....................................................... 16

State v. McReynolds,

71 P.3d 663 (Wash. Ct. App. 2003) ....................................................... 16

State v. Partin,

567 P.2d 1136 (Wash. 1977) .................................................................. 16

Swain v. State,

504 So. 2d 347 (Ala. Crim. App. 1986) .................................................. 16

Texas v. Brown,

460 U.S. 730 (1983) .......................................................................... 14–15

United States v. Abdul-Ganiu,

480 F. App’x 128 (3d Cir. 2012) ............................................................. 19

iv

United States v. Character,

568 F.2d 442 (5th Cir. 1978).................................................................. 15

United States v. Cordero-Rosario,

786 F.3d 64 (1st Cir. 2015) .................................................................... 19

United States v. Frazier,

423 F.3d 526 (6th Cir. 2005).................................................................. 18

United States v. Gettel,

474 F.3d 1081 (8th Cir. 2007)................................................................ 14

United States v. Jenkins,

901 F.2d 1075 (11th Cir. 1990).............................................................. 14

United States v. Leon,

468 U.S. 897 (1984) ................................................................................ 20

United States v. Manufacturers National Bank of Detroit,

536 F.2d 699 (6th Cir. 1976).................................................................. 20

United States v. Ventresca,

380 U.S. 102 (1965) ................................................................................ 20

Wamble v. State,

593 So. 2d 109 (Ala. Crim. App. 1991) .................................................. 15

Whiteley v. Warden,

401 U.S. 560 (1971) ................................................................................ 16

v

Statutes and Rules

ALA. CODE § 13A-5-40 (1975) ..................................................................................... 10

FED. R. CRIM. P. 41........................................................................................... 18

Other Authorities

W. LAFAVE,

2 SEARCH AND SEIZURE § 4.3 (1978) ...................................................... 16

vi

INTRODUCTION

Dontae Callen brutally murdered three members of his family—his

grandaunt, her adult son, and his twelve-year-old cousin—by stabbing them

dozens of times and setting their apartment on fire. No criminal mastermind,

Callen left a trail of forensic evidence leading away from the crime scene, left

more bloodstained items in the nearby home in which he was staying, and

arrived at the hospital to see his grandaunt the next morning with her son’s

blood still on his body. Within hours of the murders, he was in police custody,

and officers from the Birmingham Police Department presented multiple

applications for search warrants and supporting affidavits, all designed to

preserve fragile and easily lost forensic evidence, to one circuit judge. The

first affidavit sufficiently stated probable cause for the warrant, but the

second was less specific. Still, the judge issued both warrants. The trial court

refused to suppress evidence seized during the second search, and the

Alabama Court of Criminal Appeals found no error, as the cumulative

information before the judge supplied ample probable cause for both

warrants.

Callen contends that the Court of Criminal Appeals erred by looking

beyond the four corners of the affidavit attached to the second search warrant

to determine whether probable cause existed for the issuance of that warrant.

He attempts to identify a circuit split, relying on cases with different facts

1

than those of his case. This claim is not cert-worthy; the split is questionable,

and even if the Court of Criminal Appeals erred, Leon’s good-faith exception

would permit the items seized to come into evidence.

Callen also requests that this Court hold his petition until the Court

has decided Ramos v. Louisiana, a case raising the question of whether a

non-unanimous guilt verdict can ever be constitutional. There is no reason for

this Court to hold Callen’s petition pending Ramos. Callen’s jury

unanimously convicted him of three counts of capital murder, and it retuned

an 11–1 death recommendation—a recommendation not binding upon the

trial court, which ultimately sentenced him to death. As the capital

sentencing scheme in effect at the time of Callen’s trial was constitutional,

his death sentence was properly imposed, and there is no reason for this

Court to wait to deny review.

2

STATEMENT OF THE CASE1

A.

The murder of Bernice Kelly, Quortes Kelly, and Aaliyah

Budgess

On the night of October 28–29, 2010, Bernice Kelly, her adult son,

Quortes, and her twelve-year-old niece, Aaliyah Budgess, were viciously

murdered in their apartment in Birmingham, Alabama. The three victims

suffered numerous sharp-force wounds: eighteen for Bernice, thirty-three for

Quortes, and at least thirty for Aaliyah.2 Their apartment was then set on

fire, and emergency personnel, alerted by neighbors, responded around 4 a.m.

Bernice, who was alive, unconscious, and on fire when she was found, died at

the hospital. Quortes and Aaliyah were dead when they were pulled out.3

The

investigation

soon

focused

on

Dontae

Callen,

Bernice’s

grandnephew, who had previously lived with her.4 The last person to see the

victims alive was Faye Budgess, Aaliyah’s mother, who had watched

televised wrestling with her daughter, Quortes, and Callen that evening and

1. In accordance with the Alabama courts’ format for records on appeal, citations

are as follows:

Transcript on direct appeal:

R.

Clerk’s record on direct appeal:

C.

Supplemental record on direct appeal:

# Supp.

The second supplemental record contains multiple numbered sections. For

clarity, page numbers for “2 Supp.” are given as if the document were a single

282-page volume.

2. R. 580, 601, 614, 631 (discussing wound 34).

3. R. 442, 444–50, 462–65 489–90.

4. R. 430–31, 862.

3

reported that Callen had walked with Quortes and Aaliyah back to Bernice’s

apartment around 10 p.m.5

Officer Roxann Murry, an evidence technician with the Birmingham

Police Department, found a trail of evidence leading away from the crime

scene and toward the home of Natasha Brown, where Callen was staying.

She took samples from presumed bloodstains at Bernice’s apartment, then

found knives, a red-stained cloth, and red-stained mittens in a second

location, a sewer one block away, a red-stained sock at a third location, a

sheet that matched a sheet at the crime scene in the bushes at a fourth

location, and finally, a bag of red-stained clothing and gym shoes—and a pair

of shoes with Callen’s ID inside them—at Brown’s house. Another set of

recovered shoes contained matches.6

Detective Warren Cotton, the lead investigator, spoke with members of

Bernice’s family that morning at the hospital and learned that Callen might

have been among the last people to see her alive. When Callen arrived at the

hospital after 7 a.m., Detective Cotton noticed that he seemed “extremely

nervous” and had cuts on his hand, and had him taken to police

headquarters.7 Callen was Mirandized at 10:15 a.m. and eventually

5. R. 428–32.

6. R. 495–99, 505, 508, 514–16, 519–23, 524–28; 2 Supp. 38.

7. R. 823–25; 2 Supp. 147, 149, 226.

4

requested an attorney.8 He refused a request for DNA samples, and while the

officers waited for a search warrant for biological swabs, Callen was

handcuffed to prevent him from wiping his hands.9 The police then procured

a search warrant, and Officer Murry photographed Callen.10 He had a red

stain in his ear, and Officer Murry also took swabs from his body and strands

of his hair.11 Officer April Denson, another evidence technician, was also

called in to take photos of Callen and collect swabs and his clothing.12

Callen was left alone in the interview room for a time. After singing to

himself and muttering “shit,” he said, “You killed three people, God damn, big

deal.”13 Twenty minutes later, he threw up and was taken to get water.14

Around 2:30 p.m., Callen asked to make a phone call, but was denied.15 He

was given cheeseburgers and soda before 4 p.m.16 Around 4:30, he was

examined under an alternative light source for blood, and he became upset

8. C. 80, 90; R. 827; 2 Supp. 25, 236, 240, 256.

9. 2 Supp. 31, 89, 233.

10. R. 524. The search warrant for Callen’s biological samples was first issued at

11:50 a.m., then reissued at 1:50 p.m. C. 587.

11. R. 537, 540.

12. R. 568, 570.

13. 2 Supp. 98–99.

14. 2 Supp. 99, 101.

15. 2 Supp. 104.

16. 2 Supp. 104, 106. The time is an approximation, assuming that 5:05 p.m., the

time that Callen signed his second Miranda waiver, was close to 3:30 on Disc 2

of the interview discs prepared by the Birmingham Police Department. See 2

Supp. 26 (waiver).

5

and began to cry.17 When he was returned to the interview room, Callen reinitiated contact, telling Detective Cotton, “I didn’t mean to do it.”18 Detective

Cotton informed Callen that he could not talk to Callen because Callen had

requested an attorney, but that they could talk if he waived his rights.19

Callen agreed and was Mirandized for a second time at 5:05 p.m.20 He then

admitted that he had “cut” the victims and started the fires in the

apartment.21

The Alabama Department of Forensic Sciences tested twenty-seven

samples, including swabs taken from Callen’s ear, hands, and hair, two

knives, the mittens, a jacket, a pair of shorts, a pair of jeans, a T-shirt, a

paper towel, and cigarette butts.22 The knife recovered from the sewer bore

DNA belonging to three individuals, including at least one male; all three

victims were included as potential contributors, and the odds of an unrelated

person being a contributor was 1 in 552,000 African Americans or 1 in

428,000 Caucasians. The blood on the mittens belonged to at least two

17. 2 Supp. 108, 237, 241. These events were not included in the interview discs.

However, a portion of the alternative light source test was recorded by a

cameraman filming the investigation for The First 48. 2 Supp. 262–63; see The

First 48: Burning Rage/Fallen Soldier (A&E television broadcast July 14, 2011)

at 35:00–37:10.

18. 2 Supp. 109, 237–39, 241, 248.

19. 2 Supp. 242.

20. 2 Supp. 26, 240.

21. 2 Supp. 113, 115, 119, 122–24.

22. R. 662, 674–80, 751.

6

individuals,

and

both

Callen

and

Quortes

were

included

potential

contributors.23 Blood on the jacket matched Quortes’s profile, while the

majority of the DNA found on the interior collar of the jacket—the wearer’s

DNA—matched Callen.24 Blood on the shorts and jeans also matched

Quortes.25 Finally, the swab taken from Callen’s ear contained a mixture of

DNA taken from at least two individuals, including Callen and Quortes. The

mixture of traits was 5.6 billion times more likely to have come from Callen

and Quortes than from Callen and another African-American donor.26

B.

The search warrants

Of note to the matter at bar, three search warrants were issued within

two hours on October 29, 2010, by Jefferson County Circuit Judge Teresa

Pulliam. The first, a warrant to examine Callen’s body and obtain biological

samples, issued at 11:50 a.m.27 No copy of this search warrant or the

corresponding affidavit remained in the possession of the State at the time of

Callen’s trial, and prosecutors speculated that it was destroyed.28

23. R. 690, 764–65. Specifically, the statistical estimate of an unrelated individual

contributing to the mixture was 1 in 2300 African Americans or 1 in 10,900

Caucasians.

24. R. 693, 701–02, 767–68.

25. R. 704–05, 708, 771–73, 774–77.

26. R. 712-13, 779–80.

27. C. 572; see C. 587.

28. C. 573.

7

The second search warrant, authorizing a search of Natasha Brown’s

residence, was issued at 12:25 p.m.29 The accompanying affidavit states:

I, Detective Jerry Williams with the Birmingham Police

Department, am the officer assigned to conduct an investigation

concerning a homicide.

On October 29, 2010, at approximately 4:30 A.M., units

from the Birmingham Fire Department responded to a fire at a

residence located at 1297 44th Street North, Birmingham,

Alabama 35222. The bodies of three human victims were

discovered inside the residence. Investigators from the

Birmingham Police Department were called to the scene. Stab

wounds were observed on the bodies and a homicide investigation

was initiated. Following interviews with witnesses, Dantay [sic]

CALLEN (B/M, DOB: 8/27/92) was identified as a possible

suspect and was seen by witnesses near the residence prior to

fire. Through further investigation, it was determined that

CALLEN resided with his aunt, Natasha BROWN, at 561 41st

Street North, Birmingham, Alabama 35222. Investigators

confirmed with BROWN that CALLEN resides at the residence.

BROWN further confirmed that CALLEN had been home earlier

that morning and had changed clothes. CALLEN’s clothing is still

at the residence and may contain possible forensic evidence

which would link CALLEN to the crime scene.

Based on the above information, I have reason to believe,

and do believe that there is evidence of the crime of arson and/or

homicide at the residence location of 561 41st Street North,

Birmingham, Alabama 35222[.]30

The third search warrant was a replacement warrant for biological

samples, and it issued at 1:50 p.m.31 The accompanying affidavit states:

I, Detective Cynthia Morrow, with the Birmingham Police

Department, am investigating arson of the residence located at

29. C. 586–87.

30. C. 585.

31. C. 583.

8

1249 44th Street North, Jefferson County, Alabama. This arson

occurred on October 29, 2010 at approximately 5:00 a.m.

On October 29, 2010, the Birmingham Fire Department

responded to a call at the above listed location and upon arrival

discovered the residence engulfed in flames and proceeded to

extinguish the fire. After distinguishing [sic] the fire, firefighters

discovered three bodies. Also, in the residence and around the

bodies officers observed what appeared [to be] pools of blood.

Blood samples were collected from within the residence by

Birmingham technicians. . . . While interviewing Dontae Callin

[sic] he stated that he was at the location several hours prior to

the incident. Also while Detective Cotton was interviewing

Dontae Callin [sic] he observed what appeared to be a red liquid

substance inside of his ear. Detective Cotton noticed numerous

puncture wounds and scratches on the right side of his neck.

Based upon the suspect, Dontae Callin [sic], being seen

near the crime location, I have reason to believe, and do believe

that the above individual is the contributor of the blood evidence

collected at the scene of the arson. To further my investigation, it

is necessary to obtain a sample of biological fluid, to-wit: saliva,

from the person of Dontae Callin [sic].

The requested evidentiary samples may be collected from

the person of Dontae Callin [sic] by the swabbing of his cheeks

and of his hands and nails, and an alternate light source and

secured for comparison with the evidentiary samples previously

collected in this investigation.32

As Judge Pulliam explained in a handwritten note:

Original search warrant was sworn to and issued to Detective

Morrow at 11.50 AM on this date. This search warrant was later

VOIDED, as there was information contained therein, that was

later proven to be unreliable. This search warrant was

subsequently issued based on same information stating probable

cause as first, minus this information.33

32. C. 583.

33. C. 587.

9

Two days prior to trial, defense counsel filed a motion to suppress the

evidence recovered from the residence (the 12:25 p.m. warrant) based on an

inadequate affidavit.34 The prosecution argued that Detective Williams had

outlined his personal knowledge and provided information obtained by the

police department in the affidavit.35 The defense objected to the introduction

of items taken from the residence, but the court overruled their objections.36

C.

The trial

Callen was indicted on three counts of capital murder in May 2011:

murder of two or more persons pursuant to one scheme or course of conduct,

murder of a person less than fourteen years of age, and murder committed

during the commission of arson.37 Callen was eighteen years old at the time

of the murders and was determined to not be intellectually disabled after a

hearing.38 The jury found him guilty as charged on all counts.39

Following the penalty-phase presentation, the jury recommended 11–1

that Callen be sentenced to death.40 At the time of Callen’s trial, the jury’s

verdict as to penalty was advisory and not binding on the trial court, a

34. C. 555–57.

35. C. 580.

36. R. 525, 531, 533.

37. C. 131; see ALA. CODE §§ 13A-5-40(a)(9), (a)(10), (a)(15) (1975).

38. C. 92–94; see 2 Supp. 161 (listing date of birth as August 27, 1992).

39. C. 665–67.

40. C. 668.

10

scheme this Court upheld in Court in Harris v. Alabama.41 The trial court

held a sentencing hearing on August 20, 2013, heard additional testimony,

accepted the jury’s recommendation, and sentenced Callen to death.42

D.

Post-trial and direct appeal

Defense counsel filed a motion for new trial, which was heard on

October 16, 2013, and denied on October 22.43

On direct appeal, the Alabama Court of Criminal Appeals affirmed

Callen’s convictions in April 2017 but remanded for an amended sentencing

order.44 The court affirmed Callen’s death sentence on return to remand four

months later.45 The Alabama Supreme Court denied certiorari in November

2018.46

The present petition for writ of certiorari followed.

41. 513 U.S. 504 (1995).

42. R. 1274; see C. 113–23 (sentencing order).

43. C. 126; R. 1276–83.

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

45. Callen v. State, CR-13-0099, 2017 WL 3446533 (Ala. Crim. App. Aug. 11, 2017).

46. Ex parte Callen, No. 1170219 (Ala. Nov. 16, 2018).

11

REASONS THE PETITION SHOULD BE DENIED

No issue in Callen’s petition is worthy of certiorari.

First, Callen’s Fourth Amendment claim is meritless, and the split he

identifies is questionable. This is a case in which a single judge issued three

warrants seeking to preserve forensic evidence in the span of two hours, all

concerning the primary suspect in a brutal triple homicide that had occurred

less than twelve hours before. Any deficiencies in the affidavit accompanying

the second search warrant application were covered by the affidavit

accompanying the first and third applications. In short, it is uncontested that

“the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a search

would uncover evidence of wrongdoing,” and “the Fourth Amendment

requires no more.”47

Moreover, if the issuing magistrate erred by relying on the totality of

the information before her, the officers executing the challenged search

warrant did so in good faith, making this case a poor vehicle to examine the

issue Callen raises.

Second, there is no reason for this Court to hold Callen’s petition until

a decision is announced in Ramos v. Louisiana.48 Ramos questions the

47. Illinois v. Gates, 462 U.S. 213, 236 (1983) (quoting Jones v. United States, 362

U.S. 257, 271 (1960)).

48. No. 18-5924.

12

constitutionality of non-unanimous guilt verdicts, which is not at issue in

Callen’s case. The only non-unanimous verdict here was the jury’s 11–1 death

recommendation—which, under Alabama’s capital sentencing scheme at the

time, was not binding on the trial court.

For the reasons that follow, Taylor’s petition is not cert-worthy.

I.

Certiorari is unwarranted as to Callen’s Fourth Amendment

claim.

Callen first contends that this Court should grant certiorari to

determine whether an appellate court, when determining whether probable

cause existed to issue a search warrant, is limited in its review to the four

corners of the affidavit submitted in support of the warrant. This claim is not

cert-worthy.

As set forth above, Judge Pulliam issued three search warrants in this

case within a two-hour period shortly after Callen was taken into custody.

The first (the 11:50 a.m. warrant) was for biological samples from his person,

but the affidavit contained certain unreliable material. As a result, the

warrant was voided, then reissued at 1:50 p.m., “based on [the] same

information stating probable cause as [the] first,” minus the unreliable

information.49 In other words, the 11:50 a.m. affidavit was sufficient to

49. C. 587.

13

establish probable cause for a search of Callen’s person, even with the

erroneous information removed. Between these two warrants was the

12:25 p.m. warrant for a search of Natasha Brown’s home, where Callen

lived. The accompanying affidavit was less detailed than the affidavit used

for the first and third applications, though it pertained to the same individual

and the same crime.

The Court of Criminal Appeals considered the trial court’s failure to

suppress evidence taken pursuant to the 12:25 p.m. warrant and found no

error:

“The Fourth Amendment to the United States Constitution

provides, in pertinent part, that ‘[t]he 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.’ Thus, ‘[a] search

warrant may only be issued upon a showing of probable

cause that evidence or instrumentalities of a crime or

contraband will be found in the place to be searched.’

United States v. Gettel, 474 F.3d 1081, 1086 (8th Cir.

2007).”

Ex parte Green, 15 So. 3d 489, 492 (Ala. 2008).

“‘Probable cause to search a residence exists when “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).’ United States v. Jenkins, 901 F.2d

1075, 1080 (11th Cir.), cert. denied, 498 U.S. 901 (1990). . . .

[T]here is no requirement of a ‘showing that such a belief

be correct or more likely true than false. A “practical,

nontechnical” probability that incriminating evidence is

involved is all that is required.’ Texas v. Brown, 460 U.S.

14

730, 742 (1983). Additionally, ‘[w]here a magistrate has

found probable cause, the courts should not invalidate the

warrant by interpreting the affidavit in a hypertechnical

rather than a common sense manner, and should resolve

doubtful or marginal cases according to the preference to be

accorded to warrants.’ Maddox v. State, 502 So. 2d 779, 785

(Ala. Crim. App. 1985), affirmed in part, remanded on other

grounds, 502 So. 2d 786 (Ala.), cert. denied, 479 U.S. 932

(1986).”

Poole v. State, 596 So. 2d 632, 641 (Ala. Crim. App. 1992).

While it is true that the affidavit did not provide information

concerning the name of the person or persons who had seen

Callen near the residence before the murders or evidence of the

time he was seen before the murders—the record clearly shows

that three warrants were issued by the same judge within hours

on October 29, 2010. As noted above, the first warrant is not in

the record. However, the record shows that the affidavit in

support of the warrant to obtain biological samples from Callen,

the third warrant, was similar to the affidavit in support of the

first warrant. As stated previously, the warrant to obtain

biological samples contained the following information in that

affidavit: “[W]hile Detective Cotton was interviewing Dontae

Callen he observed what appeared to be a red liquid substance

inside of his ear. Detective Cotton noticed numerous puncture

wounds and scratches on the right side of his neck.” (C. 583.)

When examining whether there is probable cause to issue a

search warrant:

“‘This court must look at the totality of the information that

was supplied to the magistrate before the warrant was

issued. We do not ‘restrict [our] review to the “four corners”

of the affidavit. United States v. Character, 568 F.2d 442

(5th Cir. 1978).’ Wamble v. State, 593 So. 2d 109, 110 (Ala.

Crim. App. 1991).”

Moore v. State, 650 So. 2d 958, 965 (Ala. Crim. App. 1994).

15

“‘[I]f the affidavit is on its face insufficient to support a

finding of probable cause, the State may then adduce

testimony showing that the sufficient evidence was, in fact,

before the issuing magistrate.’ Mayes v. State, 260 So. 2d

403, 405 (Ala. 1972). See Crittenden v. State, 476 So. 2d 626

(Ala. Crim. App. 1983); Oliver v. State, 238 So. 2d 916 (Ala.

1970).

“While an insufficient affidavit may be supplemented by

oral testimony, the testimony must relate to the

information actually disclosed to the issuing magistrate

and not merely to information known by the affiant but

undisclosed to the magistrate at the time of procuring the

affidavit. Whiteley v. Warden, 401 U.S. 560, 565 n.8 (1971);

Davis v. State, 500 So. 2d 472 (Ala. Crim. App. 1986). See

W. LAFAVE, 2 SEARCH AND SEIZURE § 4.3 (1978).”

Swain v. State, 504 So. 2d 347, 352 (Ala. Crim. App. 1986).

In a similar fact situation, the Washington Court of Appeals in

State v. McReynolds, 71 P.3d 663 (2003), stated:

“The [defendants] apparently contend the analysis of the

application for Warrant 5 must be limited to the four

corners of the officers’ affidavit. However, CrR 2.3(c)

implicitly permits consideration of facts extrinsic to the

affidavit. See State v. Jansen, 549 P.2d 32, review denied,

87 Wash. 2d 1015 (1976); see also State v. Gonzalez, 891

P.2d 743 (1995), review denied, 910 P.2d 481 (1996). In

light of the requirement that warrant applications be

evaluated in a commonsense manner, State v. Partin, 567

P.2d 1136 (1977), the court here properly considered the

application for Warrant 5 in light of all of the events of the

case, within the previous four days. . . .”

71 P.3d at 673.

Clearly Judge Pulliam was in possession of all the above

information before signing the search warrant for Callen’s

residence. Cumulatively, all the evidence provided sufficient

probable cause. Police knew that Callen had been the last person

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to see the three victims, Callen had cuts on his hands and

scratches on his body, Callen had what appeared to be blood in

one of his ears, police knew that the victims had been stabbed,

and Callen had changed clothes. The circuit court did not err in

denying Callen’s motion to suppress the evidence seized as a

result of the execution of the search warrant on Callen’s

residence, and Callen is due no relief on this claim.50

As Callen acknowledges, “Reviewing courts must examine the totality

of the circumstances in determining whether an affidavit adequately

supports a finding of probable cause,”51 which is precisely what the Court of

Criminal Appeals did in this case. Here, the judge issued three search

warrants in short order, all pertaining to a single suspect in a triple homicide

that had occurred less than twelve hours before, and all in search of forensic

evidence that would tie Callen to the murders—evidence that could have

easily been lost or destroyed. Based on the totality of the information that

was before Judge Pulliam, there was probable cause for her to issue the

search warrants.

This Court has never held that a reviewing court is limited to the four

corners of the affidavit presented in support of a given search warrant and

only that affidavit. The touchstone has always been whether sufficient

evidence was “brought to the magistrate’s attention,”52 not whether the

50. Callen, 2017 WL 1534453, at *21–22 (citations edited).

51. Gates, 462 U.S. at 238; see Pet. 9.

52. Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964).

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information was in one document or two. Accordingly, Federal Rule of

Criminal Procedure 41 provides that a magistrate must issue a warrant

“[a]fter receiving an affidavit or other information” that establishes probable

cause, and that information can include sworn testimony, including

testimony delivered over the phone.53

Moreover, the cases that Callen offers in support of his allegedly

“better-reasoned view”54—i.e., that a reviewing court cannot consider

additional affidavits before the issuing magistrate in its analysis—have

distinguishable facts from Callen’s. First, in United States v. Frazier, there

were six search warrants issued concerning multiple individuals in the

defendant’s twenty-five-person drug organization, which were obtained after

a four-year investigation and several controlled buys by a cooperating

witness. The affidavit concerning the defendant lacked information present in

the other five.55 Though the Sixth Circuit determined that it was limited in

its review to the four corners of the defective affidavit, it still found that the

officer had acted in good faith in executing the search.56 By contrast, in

Callen’s case, three search warrants were issued concerning a single

defendant to preserve forensic evidence, within hours of a triple homicide.

53. FED. R. CRIM. P. 41(d) (emphasis added).

54. Pet. 11.

55. 423 F.3d 526, 529–30 (6th Cir. 2005).

56. Id. at 531, 533–36.

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Second, in United States v. Cordero-Rosario, neither affidavit submitted in

support of the two warrants concerning the defendant was sufficiently

specific to establish probable cause57—again, quite different from the matter

at hand, in which the 1:50 p.m. affidavit (the pared-down version of the 11:50

a.m. affidavit) established probable cause and filled in the weak spots of the

12:25 p.m. affidavit. Third, in United States v. Abdul-Ganiu, the affidavit for

the search warrant concerning the defendant’s apartment did not incorporate

an anticipatory search warrant regarding a package shipped to him from

India containing heroin. However, the package was opened within minutes of

delivery, and the defendant was caught with the heroin on his person. His

statements and subsequent evasive behavior helped establish the nexus

between his criminal activity and his residence, and the court concluded that

even if it had not, the good-faith exception would apply to the search.58 In

Callen’s case, there was no anticipatory search warrant—the judge acted

quickly to issue three warrants to preserve forensic evidence over the course

of two hours.

57. 786 F.3d 64, 67–72 (1st Cir. 2015).

58. 480 F. App’x 128, 129–31 (3d Cir. 2012).

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Moreover, as Callen acknowledges,59 the Sixth Circuit has repeatedly

failed to apply Callen’s purported rule. In Sovereign News Co. v. United

States, that court wrote:

The Supreme Court stated that “affidavits for search

warrants . . . must be tested and interpreted by magistrates and

courts in a commonsense and realistic fashion.” United States v.

Ventresca, 380 U.S. 102, 108 (1965). The same magistrate issued

both warrants only seven days apart at the request of the same

agent who was conducting the same investigation. The second

affidavit recounted both the first search and the nature of the

items collected. The affidavit then provided a list of materials

whose titles and covers strongly suggested that they were of the

same variety as those already seized. This court has allowed

probable cause to be established by reading related affidavits in

conjunction with one another. United States v. Manufacturers

National Bank of Detroit, 536 F.2d 699 (6th Cir. 1976), cert.

denied, 429 U.S. 1039, (1977).60

The timing was even tighter in Callen’s case: the same judge issued the first

and second search warrants approximately thirty-five minutes apart.

The supposed circuit split to which Callen directs this Court does not

warrant certiorari review. Even if it did, however, this case would be a poor

vehicle for review, as the good-faith exception set forth in United States v.

Leon61 would apply. Even if, arguendo, the first affidavit should not have

been considered in finding probable cause for the second search warrant, the

officers had a good-faith basis for relying on the search warrant: officers from

59. Pet. 12.

60. 690 F.2d 569, 575 (6th Cir. 1982) (citations edited).

61. 468 U.S. 897 (1984).

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the same agency were moving quickly to bring search warrants to one judge

to preserve forensic evidence concerning one suspect, who had been taken

into custody with injured hands and a spot of probable blood in his ear. Most

important, the officers provided the magistrate with more than enough

evidence to support her judgment that a search was warranted. Thus, even if

there had been a problem with the issuance of the 12:25 p.m. search warrant,

suppression of the evidence seized during that search was properly denied.

Therefore, this Court should deny certiorari.

II.

This Court should not hold Callen’s petition pending the result

of Ramos v. Louisiana.

Callen argues that this Court should hold his petition pending the

outcome of Ramos v. Louisiana62 because his jury returned an 11–1 death

recommendation that was not binding on the trial court. This contention is

meritless.

Ramos asks whether the rule of Apodaca v. Oregon63 and Johnson v.

Louisiana64

permitting

non-unanimous

jury

verdicts

should

remain

constitutional. Both Apodaca and Johnson were concerned with convictions,

not with questions of penalty-phase unanimity, much less penalty-phase

62. No. 18-5924.

63. 406 U.S. 404 (1972).

64. 406 U.S. 356 (1972).

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unanimity in cases in which the court is the ultimate sentencer. This Court

has never held that a defendant sentenced to death must be so sentenced by a

unanimous jury—indeed, this Court has upheld sentencing schemes in which

the jury’s penalty-phase vote is a mere recommendation to the trial court,

such as Alabama’s former sentencing scheme, which the Court approved in

Harris v. Alabama.65 Alabama relied on Harris to sentence hundreds of

murderers, including Callen, before amending its capital sentencing scheme

in 2017. As Justice Kennedy noted, “the States’ settled expectations deserve

our respect.”66 Thus, Callen’s potential claim would hinge on this Court first

finding that non-unanimous guilt verdicts are unconstitutional in Ramos,

then extending that holding to penalty-phase verdicts, and finally

overturning Harris. This chain of events is simply too tenuous to provide

cause for Callen’s petition to be held pending a decision in Ramos.

65. 513 U.S. 504 (1995).

66. Ring v. Arizona, 536 U.S. 584, 613 (2002) (Kennedy, J., concurring).

22

CONCLUSION

This Court should deny certiorari.

Respectfully submitted,

STEVE MARSHALL

Alabama Attorney General

s/ Lauren A. Simpson

Lauren A. Simpson

Assistant Attorney General

*Counsel of Record

OFFICE OF ALA. ATT’Y GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

lsimpson@ago.state.al.us

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