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CA7: Ornelas's de novo review is limited to warrantless searches, but not clearly so

By John Wesley Hall, Jr.

The Seventh Circuit holds that Ornelas's de novo review is limited to warrantless searches. While the question is not free from doubt, it is resolved here, on a 2-1 vote, only for consistency with Gates. United States v. McIntire, 2008 U.S. App. LEXIS 3204 (7th Cir. February 15, 2008) (per Easterbrook): Ornelas thus distinguished searches conducted without a warrant, where appellate review of the justification is non-deferential, from searches authorized by a warrant, where appellate courts must afford "great deference" to the decision of the judge who issued the warrant. This produces a complex standard of appellate review. A district court's findings of historical fact are reviewed for clear error, whether or not a warrant issued. Ornelas, 517 U...continue to full post

Full post as published by Fourth Amendment on February 16, 2008 (boomark / email).