Opposition Brief — Bentley Streett, Petitioner v. United States

No. 23-7321

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

BENTLEY STREETT, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

ETHAN A. SACHS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the Fourth Amendment required suppression of evidence

derived from a search of petitioner’s home on the ground that the

search warrant affidavit did not explicitly identify the house as

petitioner’s residence.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 23-7321

BENTLEY STREETT, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-31a) is

reported at 83 F.4th 842.

The order of the district court (Pet.

App. 34a-214a) is reported at 363 F. Supp. 3d 1212.

JURISDICTION

The judgment of the court of appeals was entered on October

5, 2023.

A petition for rehearing was denied on December 26, 2023

(Pet. App. 215a-216a). On March 11, 2024, Justice Gorsuch extended

the time within which to file a petition for a writ of certiorari

to and including April 24, 2024, and the petition for a writ of

2

certiorari was filed on that date.

The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District Court

for the District of New Mexico, petitioner was convicted on one

count

of

traveling

to

engage

in

illicit

sexual

conduct,

in

violation of 18 U.S.C. 2423(b) (2012); two counts of producing a

visual depiction of a minor engaging in sexually explicit conduct,

in violation of 18 U.S.C. 2251(a) and (e) and 18 U.S.C. 2256

(2012); three counts of attempting to produce a visual depiction

of a minor engaging in sexually explicit conduct, in violation of

18 U.S.C. 2251(a) and (e) and 18 U.S.C. 2256 (2012); one count of

distributing a visual depiction of a minor engaging in sexually

explicit conduct, in violation of 18 U.S.C. 2252(a)(2) and (b)(1)

and 18 U.S.C. 2256 (2012); and one count of possessing child

pornography, in violation of 18 U.S.C. 2252A(a)(5)(B) and (b)(2)

and 18 U.S.C. 2256 (2012).

Judgment 1-2.

He was sentenced to 360

months of imprisonment, to be followed by ten years of supervised

release.

Judgment 3-4.

The court of appeals affirmed.

Pet. App.

1a-31a.

1.

a.

In October 2013, a woman in Minnesota alerted the

National Center for Missing and Exploited Children (NCMEC) that

her

15-year-old

daughter

had

soliciting nude photographs.

recently

received

Pet. App. 39a.

text

messages

The woman gave NCMEC

the phone number of the texter, and based on an internal database,

3

NCMEC learned that it was a T-Mobile number under petitioner’s

name.

Id. at 41a-42a.

The same database listed petitioner’s

address as 4620 Plume Road in Albuquerque, New Mexico.

Ibid.

NCMEC forwarded the information to the New Mexico Attorney

General’s

office,

which

subpoenaed

T-Mobile

information relating to the phone number.

Among

other

things,

T-Mobile

confirmed

General’s

sheriff’s

office

office

in

referred

Bernalillo

Albuquerque is the county seat.

additional

Pet. App. 50a-51a.

that

registered to petitioner at 4620 Plume Road.

Attorney

for

that

County,

the

number

was

Id. at 53a.

The

information

New

Mexico,

to

the

where

Id. at 55a.

A detective in the sheriff’s office, Kyle Hartsock, then

obtained a search warrant for T-Mobile’s records relating to the

number.

Pet. App. 35a, 58a.

The records revealed, inter alia,

that petitioner’s phone had exchanged thousands of calls and text

messages with phones across the United States and Canada, including

over 100 exchanges with the girl in Minnesota.

Id. at 63a-64a.

Through further investigation, Detective Hartsock learned that

many of petitioner’s communications had, like his communications

with that girl, been with minors.

Id. at 65a-67a.

Detective Hartsock next contacted law-enforcement officers in

Minnesota and asked that they speak with the girl and her mother.

Pet. App. 70a.

The girl told the officers that she had met

petitioner on Twitter when she was 14 years old; that her Twitter

profile had listed her age; and that petitioner had requested

4

multiple times that she send him nude photographs.

Id. at 4a, 5a,

208a.

b.

Several days later, Detective Hartsock applied for a

warrant to search the residence at 4620 Plume Road.

67a.

Pet. App.

His warrant affidavit recounted the investigation to date,

including the NCMEC tip and the girl’s statements to the officers

in Minnesota, and explained that, in some cases of suspected child

exploitation, law enforcement “will get subpoenas on internet and

phone providers to establish an address of the incident.”

App. 176-178.

1 C.A.

Detective Hartsock’s affidavit further stated that

investigators had subpoenaed T-Mobile and found that the cellphone

number that had messaged the girl “was registered to Bentley

Streett, who lives in Bernalillo County.”

Id. at 177.

The

affidavit described the 4620 Plume Road residence in detail, id.

at 174, and explained at length Detective Hartsock’s knowledge,

“from training and experience,” that searches of sexual predators’

“residential

properties”

commonly

yield

evidence

of

sexual

exploitation of minors, id. at 178-186.

A state magistrate judge approved the warrant telephonically.

1 C.A. App. 648.

While executing the warrant, officers spoke with

petitioner, who admitted he may have used Twitter to “ask[] some

girls under eighteen for nude photographs of themselves.”

App.

5a-6a.

The

search

of

the

residence

uncovered

Pet.

various

electronic devices that contained sexually explicit images of

minors.

Gov’t C.A. Br. 6.

Some of the evidence obtained during

5

the search also caused officers to obtain and execute additional

warrants

for

searches

that

revealed

communicated with other underage victims.

petitioner

to

have

Pet. App. 6a; 1 C.A.

App. 165.

2.

Mexico

A federal grand jury sitting in the District of New

returned

a

second

superseding

indictment

charging

petitioner with various offenses, including traveling for the

purpose of engaging in illicit sexual conduct with a minor, in

violation of 18 U.S.C. 2423(b); producing and distributing visual

depictions of minors engaging in sexually explicit conduct, in

violation of 18 U.S.C. 2251(a) and (e), 2252(a)(2), and 2256;

transferring obscene material to a minor, in violation of 18 U.S.C.

1470; and possessing child pornography, in violation of 18 U.S.C.

2252A(a)(5)(B), (b)(2), and 2256.

1 C.A. App. 1165-1166.

Petitioner moved to suppress all evidence derived from the

search of his residence, on the theory (inter alia) that Detective

Hartsock’s warrant affidavit had not established probable cause

because it failed to connect petitioner to the 4620 Plume Road

address. Pet. App. 6a. The government opposed the motion, arguing

that the affidavit had established probable cause, and that even

if it had not, officers had relied on the warrant in good faith,

see United States v. Leon, 468 U.S. 897 (1984), and would have

inevitably discovered the evidence through other means, see Nix v.

Williams, 467 U.S. 431 (1984).

1 C.A. App. 418-429.

6

At a hearing on the motion to suppress, Detective Hartsock

acknowledged that he had not explicitly identified 4620 Plume Road

as petitioner’s residence in the warrant affidavit.

567.

3 C.A. App.

Detective Hartsock noted, however, that he could have done

so “[v]ery easily” had it been requested by the magistrate, id. at

478,

because

he

knew

when

he

applied

for

the

warrant

that

petitioner lived at 4620 Plume Road based on the NCMEC report and

the materials T-Mobile had provided in response to the subpoena

from

the

New

Mexico

Attorney

General’s

office

and

Detective

Hartsock’s first warrant, id. at 475-476.

The district court denied petitioner’s motion.

It took the

view that Detective Hartsock’s warrant affidavit had failed to

establish

probable

cause

by

not

“indicat[ing]

connection with the 4620 Plume residence.”

[petitioner’s]

Pet. App. 196a.

But

it declined to suppress the evidence recovered from the house,

finding that the officers had relied on the warrant in good faith,

id. at 199a-206a; that they would have inevitably discovered the

evidence through a valid warrant for the residence if the state

magistrate had rejected Detective Hartsock’s application for lack

of an explicit statement that 4620 Plume Road was petitioner’s

address, id. at 207a-210a; and that Detective Hartsock would in

fact have found the identities of the victims of the charged crimes

simply from the phone records, without any search of petitioner’s

residence at all, id. at 210a-212a.

7

Petitioner then pleaded guilty to eight of the counts in the

indictment, Judgment 1-2, while reserving his right to appeal the

denial of the suppression motion, Pet. App. 7a.

3.

The court of appeals affirmed.

government

accepted,

and

the

court

Pet. App. 1a-31a.

agreed,

that

the

The

warrant

affidavit “did not establish probable cause because it failed

explicitly to link [petitioner] to the 4620 Plume residence.”

at 8a; see id. at 14a.

Id.

But the court affirmed the denial of the

suppression motion under the inevitable-discovery doctrine, which

provides

that

evidence

Amendment

“need

not

be

obtained

in

suppressed”

violation

of

if

prosecution

“‘the

the

Fourth

can

establish by a preponderance of the evidence that the information

ultimately or inevitably would have been discovered by lawful

means.’”

Id. at 9a (quoting Nix, 467 U.S. at 444).

The court

reasoned that because Detective Hartsock had strong evidence “that

4620

Plume

was

[petitioner’s]

residence”

when

he

sought

the

warrant, “[i]n a hypothetical world where the warrant application

was denied” for failure to link petitioner to that address,

Detective Hartsock would have easily remedied the defect and a

valid warrant would have been granted.

Id. at 14a-15a.

And

because it affirmed on that rationale, the court saw no need to

address the government’s alternative arguments that suppression

was unwarranted under the good-faith doctrine or whether the

evidence of petitioner’s offenses would “have been discovered

8

without reliance” on the search of petitioner’s residence.

Id. at

8a.

ARGUMENT

Petitioner renews his contention (Pet. 12-16) that evidence

derived from a search of his residence should have been suppressed

based on the warrant affidavit’s failure to explicitly identify

the house to be searched as his residence.

Even assuming that the

inevitable-discovery doctrine was not the appropriate framework

for affirmance, the judgment below is correct and does not warrant

this Court’s review.

was

at

least

The search warrant affidavit in this case

sufficient

for

reliance

on

the

warrant

to

be

objectively reasonable for purposes of the good-faith exception to

the exclusionary rule.

See Schiro v. Farley, 510 U.S. 222, 228-

229 (1994) (respondent may “rely on any legal argument in support

of the judgment below”).

And petitioner fails to show that the

question presented requires this Court’s review in any case, let

alone this one.

1.

The court of appeals correctly affirmed the denial of

petitioner’s motion to suppress.

As the district court found and the government contended

below, see Pet. App. 7a-8a, 199a-206a, denial of petitioner’s

motion to suppress was fully supported by the good-faith exception

to the exclusionary rule.

The only defect petitioner alleges is

that the supporting affidavit “contained no link” between him and

“the property to be searched,” the residence at 4620 Plume Road.

9

Pet. 2.

But “[p]robable cause,” as this Court has “often told

litigants, is not a high bar.”

320, 338 (2014).

Kaley v. United States, 571 U.S.

And in United States v. Leon, 468 U.S. 897

(1984), this Court held that “evidence obtained in objectively

reasonable reliance on a subsequently invalidated search warrant”

is not subject to suppression under the Fourth Amendment.

922.

Id. at

The bare existence of a warrant “‘normally suffices to

establish’ that a law enforcement officer has ‘acted in good faith

in conducting the search.’”

Ibid. (quoting United States v. Ross,

456 U.S. 798, 823 n.32 (1982)).

Read as a whole, Detective Hartsock’s affidavit at least

indirectly identified 4620 Plume Road as petitioner’s residence.

See Massachusetts v. Upton, 466 U.S. 727, 732 (1984) (per curiam)

(warrant affidavit must be considered “in its entirety,” not in

“bits and pieces”).

The affidavit described 4620 Plume Road as a

residential address, and it explained that (1) phone records are

sometimes used “to establish an address of the incident” in cases

involving sexual exploitation of children; (2) evidence of such

conduct is likely to be found in a perpetrator’s home; and (3) law

enforcement had used phone records to identify the suspect as

“Bentley Streett, who lives in Bernalillo County.”

177; see p. 4, supra.

1 C.A. App.

The warrant thus strongly indicated that

4620 Plume Road was petitioner’s address, and that the source of

that information was his phone records, even if it did not say so

in haec verba.

10

Reliance on the warrant in those circumstances was therefore,

at a minimum, objectively reasonable.

Probable cause does not

turn on formalities; instead, affidavits “are normally drafted by

nonlawyers in the midst and haste of a criminal investigation,”

and “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); see Florida v. Harris, 568 U.S. 237, 244

(2013);

Illinois

v.

Gates,

462

U.S.

213,

235-236

(1983).

Accordingly, it was not unreasonable for the state magistrate and

the officers to read the affidavit here in a holistic, commonsense

manner as at least implicitly representing that 4620 Plume Road

was petitioner’s residence.

See United States v. Harper, 802 F.2d

115, 120 (5th Cir. 1986) (relying on the affidavit’s implicit

content in upholding a warrant); State v. Koen, 152 P.3d 1148,

1153 (Alaska 2007) (per curiam) (upholding a warrant based on an

affidavit that implicitly linked the defendant to the target

property); cf. United States v. Hove, 848 F.2d 137, 140 (9th Cir.

1988) (finding a warrant invalid where the affidavit provided no

link to the property at all).

Petitioner

errs

in

contending

that

Detective

Hartsock’s

affidavit was “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.”

(quoting

Leon,

468

U.S.

at

923).

“[T]he

Pet. 18

threshold

for

establishing” that limitation on the good-faith doctrine “is a

high one, and it should be.”

Messerschmidt v. Millender, 565 U.S.

11

535, 547 (2012).

And in any event, Detective Hartsock’s testimony

at the suppression hearing confirmed that the deficiency was an

inadvertent mistake.

See p. 6, supra.

Applying the exclusionary

rule to such a mistake, which does not advantage law enforcement

and

would

easily

be

corrected

appreciable deterrent value.

if

identified,

would

have

no

See Herring v. United States, 555

U.S. 135, 147–148 (2009) (“In light of our repeated holdings that

the

deterrent

effect

of

suppression

must

be

substantial

and

outweigh any harm to the justice system, we conclude that when

police mistakes are the result of negligence such as that described

here,

rather

than

systemic

error

or

reckless

disregard

of

constitutional requirements, any marginal deterrence does not pay

its way.”) (citations and internal quotation marks omitted); Leon,

468 U.S. at 907, 918-921; United States v. Frazier, 423 F.3d 526,

535 (6th Cir. 2005) (applying the good-faith exception where the

deficiency in the warrant affidavit amounted to “a scrivener’s

error”).

2.

The decision below therefore reached the correct result

-- affirming the denial of petitioner’s suppression motion.

because “[t]his Court reviews

* * *

And

judgments, not statements in

opinions,” Black v. Cutter Labs., 351 U.S. 292, 297 (1956),

petitioner’s contention that court of appeals mistakenly relied on

the inevitable-discovery doctrine, rather than the good-faith

doctrine, would not justify this Court’s review.

12

The

inevitable-discovery

doctrine

provides

that

evidence

derived from a Fourth Amendment violation should not be suppressed

if “the information ultimately or inevitably would have been

discovered by lawful means.”

(1984).

Nix v. Williams, 467 U.S. 431, 444

But even assuming that the inevitable-discovery doctrine

is not the applicable rule in a case like this -- one involving,

at most, mistaken omission of “a single sentence,” Pet. App. 14a,

from the warrant affidavit -- petitioner fails to show any need

for this Court’s intervention.

As

petitioner

recognizes,

in

light

of

the

good-faith

doctrine, application of the inevitable-discovery doctrine rather

than the good-faith doctrine in a case like this would “matter[]

only when the probable cause defect is egregious.”

(citation omitted).

Pet. 14

Yet he fails to show that any decision of a

federal appellate court or a state court of last resort has relied

on the inevitable-discovery doctrine in these circumstances.

Pet. 6-10.

See

For reasons explained above, this is not such a case.

Nor is the only appellate decision that he views as directly on

all fours with the decision below:

the Supreme Court of Oregon’s

decision in State v. Johnson, 131 P.3d 173, cert. denied, 549 U.S.

1079 (2006).

As a threshold matter, it is far from clear that Johnson -which involved a second warrant whose validity did not depend on

an earlier defective one -- is in fact analogous to this case.

See 131 P.3d at 179; see also Segura v. United States, 468 U.S.

13

796, 813-816 (1984).

have

reached

the

In any event, as in this case, Johnson would

same

result

under

the

good-faith

exception

irrespective of inevitable discovery.

The putatively defective

affidavit

failed

in

Johnson

only

“arguably”

to

identify

the

property as the defendant’s home, and it otherwise “contained

everything that was needed to establish probable cause,” 131 P.3d

at 179 n.4, rendering reliance upon it objectively reasonable.

Cf. pp. 8-11, supra.

The handful of cases petitioner cites to support his claim of

lower-court disagreement (Pet. 6-10) simply confirms that this

Court’s review is unnecessary.

As petitioner acknowledges (Pet.

9), two of the federal cases involve different contexts; they are

therefore not directly in conflict with the decision below.

See

United States v. Lazar, 604 F.3d 230 (6th Cir. 2010), cert. denied,

562 U.S. 1140 (2011); United States v. Young, 573 F.3d 711, 713

(9th Cir. 2009).

And the third federal decision emphasized that

suppression would not be required if the district court found on

remand that the defect in the warrant was a good-faith mistake.

See United States v. Lauria, 70 F.4th 106, 122-124, 132 (2d Cir.

2023).*

Petitioner also cites (Pet. 8-9) two state-court decisions,

a 35-year-old case in which the State forfeited any good-faith

argument, State v. Handtmann, 437 N.W.2d 830, 838 n.6 (N.D. 1989),

and a more recent case that was decided under state law, State v.

Haidle, 285 P.3d 668, 677 (N.M. 2012) (declining to apply “a goodfaith exception to the warrant requirement” because New Mexico

does not recognize one). Neither suggests that further review is

necessary here.

*

14

An issue that rarely arises and makes no real-world difference

is not an issue that warrants this Court’s review. Cf. Supervisors

v. Stanley, 105 U.S. 305, 311 (1882) (explaining that this Court

does not grant a writ of certiorari to “decide abstract questions

of law

* * *

which, if decided either way, affect no right” of

the parties).

Petitioner accordingly provides no sound reason for

further review of the correct disposition of his case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

ETHAN A. SACHS

Attorney

JUNE 2024