CA7: Inevitable discovery doesn’t apply to DNA blood draw [via a habeas appeal]

The Seventh Circuit here dealt with a Fourth Amendment IAC claim. The court dealt with the Fourth Amendment merits, which was far easier, rather than get into the complexity of Stone v. Powell deterrence issue under a § 2254 claim. (And, considering the ultimate simplicity of the Fourth Amendment claim, why even talk about it?) Here, the inevitability discovery exception hardly applies to a search warrant for a DNA blood draw. Sutton v. Pfister, 2016 U.S. App. LEXIS 15589 (7th Cir. Aug. 24, 2016):

There is a presumption that the police and the courts will follow their routine procedures for issuing warrants. See, e.g., United States v. Marrocco, 578 F.3d 627, 639 (7th Cir. 2009) (presuming that police “undoubtedly would have followed routine, established steps resulting in the issuance of a warrant”); United States v. Buchanan, 910 F.2d 1571, 1573 (7th Cir. 1990) (similar). Principles of comity advise us to give the state court system this same presumption of regularity. The law on the books required the court to order Sutton to provide a blood sample. This is enough, in our view, to show by a preponderance of the evidence that, but for the fact the state already had a sample from Sutton, it would have collected a sample. (Why engage in a pointless act?) The timing of the collection of Sutton’s blood thus drops out of the case, and the DNA harvested from the sample would inevitably have been discovered after his conviction in the Rac case. The trial court in the Lally case therefore could have admitted that DNA evidence pursuant to the inevitable discovery doctrine, despite the assumed Fourth Amendment violation in the Rac case. (This is not the ground on which the state court relied, but we are not here to grade its opinions, if its ultimate result was reasonable.)

Thus, even if Sutton falls within the Powell exception, he is not entitled to habeas corpus relief. Section 2254(a) permits a federal court to grant the writ only when the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (legal errors that do not result in the petitioner’s “custody” violating the Constitution or federal law, such as errors of state law, cannot be remedied through the writ); Hampton v. Wyant, 296 F.3d 560, 562 (7th Cir. 2002) (petitioner imprisoned based on “unlawfully seized evidence is not ‘in custody in violation the Constitution'” because the “seizure may have violated the Constitution but the custody does not” (quoting 28 U.S.C. § 2254(a)). Here, even if the state violated the Fourth Amendment in the Rac case, Sutton’s custody in the Lally case is not in violation of the Constitution, and he is not entitled to the issuance of the writ.