4A 4C 2006 Short Note: Private Prison Employees Cannot Be Sued Under Bivens, But It's Open Season In State Court

HOLLY v. SCOTT, 434 F.3d 287 (4th Cir. 2006), No. 05-6287, 2006 U.S.App. LEXIS 685, on appeal from USDC-NCED, filed 12 Jan 2006.

Plaintiff, an inmate serving a federal sentence, claimed that the warden and a physician of the prison were deliberately indifferent to his serious medical needs as a diabetic. The warden and the doctor were employees of GEO Group, Inc., which operated the prison under a contract with the federal Bureau of Prisons. After exhausting his administrative remedies, Plaintiff sued the warden and the doctor per Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for violating his Eighth Amendment right to be free from cruel and unusual punishment. Defendants moved to dismiss for failure to state a claim, but the trial court held that private contractors of BOP could be liable under Bivens for violating inmates' civil rights. MOTION TO DISMISS DENIED.

The Fourth Circuit reasoned that Defendants' only connection with the federal government was their employer's contract to run the prison. Really, then, Defendants were private actors, not government officials, and Defendants' actions could not be fairly attributed to the federal government. Also Plaintiff had other ways to get compensation, such as state negligence law--arguably an even better remedy because negligence is easier to show than deliberate indifference, and Defendants' employer could be liable under respondeat superior. Congress neither expressly provided nor expressly forbade monetary damages for misdeeds of private prison contractors, so the Fourth Circuit would neither extend the judge-made Bivens doctrine to private contractors nor preclude inmates' state tort lawsuits. REVERSED AND REMANDED for entry of dismissal.

EDITORIAL: Okay, so it's not really a Fourth Amendment case, but Bivens was, and Bivens and Section 1983 are only means to the end of getting some kind of payback from somebody for doing something wrong. Also, I have run a few inmate medical civil rights suits, so I think this is just plain interesting. I'm not totally comfortable with the Fourth Circuit's holding that prisons are different if they're privately run, even if they're still just like government prisons with slightly different uniforms.

But then, the result is pretty good for inmates--now you don't have to run through all your grievances, or prove deliberate action, you can just sue away like any other citizen, and the contractors are liable for actuals, punitives, and respondeat superior, like any other business. I think the shade of ol' King Pyrrhus is probably rolling on the ground of Hades, laughing at GEO Group's hollow victory.

4A 4C 2006: A Cry For Help, In The Form Of Planted Pipe Bombs

UNITED STATES v. UZENSKI, 434 F.3d 690 (4th Cir. 2006), No. 04-4136, 2006 U.S.App. LEXIS 827, on appeal from USDC-NCED, before USCJs Niemeyer, Gregory, Shedd, opinion by Gregory, filed 13 Jan 2006.

LONG STORY SHORT: Devices that a detective planted were unregistered NFA firearms, and minor discrepancies in the warrant affidavit and seizure of some unauthorized items were not grounds for a blanket suppression of all evidence. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant, a detective with a municipal police department in North Carolina, was walking along the shoulder of a road when he found what looked like a pipe bomb. Agents with the State Bureau of Investigation bomb squad used a special gun to disable the device, and turned the pieces over to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Defendant told ATF agents that he had found the device while on routine foot patrol. The next day, Defendant and his Chief of Police and two ATF agents drove out to the site and found a second apparent pipe bomb, three yards away from where the first one had been. SBI agents shot the end cap off of it, scattering a powdery substance to the winds. ATF investigated a nearby hardware store for purchases of materials to make such devices. The store turned over its surveillance videotape showing that Defendant bought pipe and end caps two days before he reported finding the first device. A local officer told ATF that Defendant had described making bombs as a teenager, and Defendant said the same thing to an ATF agent over lunch three days later.

About a month after that, an ATF agent asked Defendant to meet with him at the SBI office to discuss the case, and when Defendant and his Chief arrived, they were not allowed to bring in their weapons. An SBI agent took Chief aside to discuss the case, and another agent directed Defendant to a conference room, where an agent asked him if he wanted any refreshments. The agent then had Defendant watch a video, which turned out to be the store surveillance tape of Defendant buying pipes and end caps. Defendant's neck veins bulged and he began hyperventilating. The agent asked why Defendant had done it, but Defendant said he had bought light bulbs and bug spray, not bomb components. The agent then presented Defendant with a copy of a search warrant that SBI had obtained, authorizing a search of Defendant's apartment and car for bomb-making materials. Defendant could not see that the issuing magistrate had stricken out a request to seize his computers. The agent asked Defendant to sign a consent to search and seizure of his computers, which Defendant signed at about 10:15am.

Defendant was free to leave and his Chief was allowed to join him in the conference room. At about that hour, SBI agents executed the search warrant, finding plaid shirts similar to the one Defendant was wearing in the surveillance video and light bulbs matching the description of those Defendant had bought. An ammunition box had police evidence stickers on it, indicating that it was probably stolen from an evidence locker, and inside were controlled substances with evidence stickers on the packaging. Agents also seized bug spray, and papers indicating that Defendant lived there. Upon hearing from the SBI office that Defendant had consented to seizure of his computers, they took those too. At 12:15pm, SBI agents arrested and cuffed Defendant, still in the SBI office.

ATF experts later identified the powder from the pipe bombs as Red Dot smokeless gunpowder, a product intended for handloading pistol and shotgun cartridges. Red Dot is a very fast-burning powder that could have detonated simply if the pipe's end caps were unscrewed. The first device incorporated 9-volt batteries, a mercury tilt switch, and an igniter intended for model rockets. When wired into a circuit, the device could have detonated when tilted. The second device had no electrical components, but ATF experts determined that it could still have exploded if the end caps were unscrewed, and amateur bombmakers had done just that on prior occasions.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of North Carolina on two counts of manufacturing and two counts of possessing unregistered National Firearms Act firearms. [Note: NFA dates from 1933 and defines "firearms" as machine guns, sawed-off rifles and shotguns, silencers, destructive devices, and ordnance bigger than .50-caliber. NFA requires registration and taxation of "firearms" and is actually part of the Internal Revenue Code.] Defendant moved to suppress his pre-arrest statements as involuntary, and all evidence seized from his home as the fruit of an illegal blanket search beyond what the warrant allowed.

The trial court found that Defendant had given a general consent to search of his apartment, and that made all items in his apartment within plain view, regardless of whether the warrant specifically mentioned them. The incriminating nature of the plaid shirts and light bulbs was immediately apparent. Also, Defendant specifically consented to seizure of his computers. Furthermore, his pre-arrest statements were voluntary and he was free to leave until his arrest. MOTION TO SUPPRESS DENIED to that extent; but since the bug spray and papers were neither on the search warrant nor apparently incriminating, MOTION TO SUPPRESS GRANTED as to them.

At trial, Defendant moved for judgment of acquittal, arguing that ATF expert testimony did not establish that the devices could have exploded, and therefore the government failed to prove that they were NFA firearms. The trial court denied such relief. The jury convicted Defendant as charged, and the trial court sentenced Defendant to 60 months. Defendant appealed his convictions and sentences to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Defendant voluntarily went to the SBI office and accepted the condition that he could not go inside armed. Defendant was free to leave when he was at the SBI office, and SBI agents told him so. Agents offered him refreshments, let him use the restroom, and allowed his Chief to visit Defendant. Anything he said up until his arrest was of his own free will. His consent to seizure of his computers was valid for the same reasons.

In the Fourth Circuit, the plain view exception to the warrant requirement applies if the police have a legal right to be there, and a legal right of access to the object in question, and if the incriminating nature of the object is immediately apparent. Here, the first two elements were present because the warrant and Defendant's permission gave the SBI agents the right to be there and right of access. Agents also knew that the plaid shirts and particularly described light bulbs incriminated Defendant by placing him in the hardware store where he could also have bought bomb components. The ammunition box appeared to be stolen, as did the controlled substances inside. On the other hand, the bug spray and evidence of residence were not on the warrant and did not look incriminating. The trial court ruled correctly on everything Defendant presented to it.

On appeal, Defendant argued that the warrant affidavit listed wrong dimensions for the pipe segments to be seized, which was such a grave misrepresentation that all evidence should be suppressed. The Fourth Circuit ruled that this, even combined with the evidence wrongly seized and suppressed, was nowhere near the level of unconstitutionality that would support a blanket suppression of all evidence. SUPPRESSION RULINGS AFFIRMED in all respects.

As to the devices, ATF experts testified that the mere act of unscrewing the end caps could detonate the Red Dot powder within, and if the pipes were from one-quarter to two-thirds full, the explosion would fragment the pipes and wound or kill anyone nearby. Even though the devices were partly destroyed when SBI shot and disarmed them, this was unavoidable, and the statute defines "destructive device" as either a working device or a combination of parts sufficient to assemble a working device. The devices had no use other than as weapons, and the jury could reasonably have found Defendant guilty of violating the statute. CONVICTIONS AFFIRMED. However, while the case was on appeal, the Fourth Circuit had decided a sentencing issue in Defendant's favor, and under that law, his sentence was excessive. SENTENCE VACATED and remanded for resentencing.

EDITORIAL: I think I'll get carpal tunnel just from writing up this opinion. Man, that was long! And all to arrive at a pretty obvious conclusion. My condolences to this guy's former department, which I don't see any point in identifying. If this opinion is any guide, this guy was a scandal waiting to happen, and it did. Lucky nobody got hurt. I think this guy wanted to get caught, based on all the obvious mistakes that a detective should have known about.

The only thing he could have done to make it more obvious was to use Bullseye powder instead of Red Dot, since it burns even faster. I use Bullseye in my .45 target loads because it's accurate, even though it's dirty and requires thorough cleaning after every match. They don't give prizes for the cleanest gun; only for the most accurate shots. If you ever read the book The Mormon Murders, the bomber there used Bullseye in his bombs to murder a couple people, and almost blew himself up when he ADed his own bomb on the way to kill yet another victim. Unfortunately, he survived and more or less got away with it. So don't play with these things, kids, even though it may seem fun at first. It's dangerous and unlawful, and ATF will find you out.

4A 4C 2006: Mistaken Dorm Room Raid Is Not Unreasonable

MAZUZ v. MARYLAND, 442 F.3d 217 (4th Cir. 2006), No. 05-1463, 2006 U.S.App. LEXIS 7660, on appeal from USDC-MDD, before USCJs Widener, Shedd, USDJ-VAED Kelley by designation, opinion by Shedd, concurrence by Kelley, filed 29 Mar 2006.

LONG STORY SHORT: Police took reasonable measures to ensure that they searched the correct dorm room, and students in the room that police mistakenly raided were not subject to an unreasonable search or seizure. Binding in MD, NC, SC, VA, WV.

FACTS: Detective Tou of the University of Maryland PD was investigating illegal drug sales on campus, including an armed robbery in dorm Ellicott Hall room 5107. The investigation revealed that one of the students involved in illegal drug sales had a knife and would use it on police if necessary. Detective Tou, who had obtained and served over 100 search warrants while with UMPD, personally visited the dorm and looked at the exterior of the rooms, then obtained search warrants for rooms 5105 and 5110, and arrest warrants for the residents of rooms 5105 and 5107. Detective Tou and his warrant team approached the rooms at 10:30pm, in hopes of better results at night instead of day. Detective Tou did not have copies of the warrants, which particularly described the rooms' exteriors, with him, even though doing so would have reduced the possibility of mistakes.

Detective Tou was to enter room 5110, but because the room numbers were beside the doors instead of on them and he was staying close to the wall, he mistook room 5108 for 5110. Plaintiff heard the knock and announce, but did not know it was a police officer until he opened the door to see Detective Tou, in tactical blacks and balaclava, pointing a firearm at him. Officers entered the room and ordered Plaintiff and his roommate to the floor and handcuffed them. Detective Tou soon determined that something was amiss, and rechecked the room number. Upon noticing his mistake, he uncuffed Plaintiff and his roommate, apologized, and led his team to search room 5110. The whole incident occupied 1 to 2 minutes. Plaintiff failed a test the next day and suffered from PTSD long after.

PROCEDURE: Plaintiff sued Maryland and Detective Tou in U.S. District Court for the District of Maryland per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable search and seizure. Detective Tou moved for summary judgment on qualified immunity grounds, arguing that his entry into Plaintiff's room was reasonable under the circumstances. The trial court ruled that although a close case, Detective Tou had been to the rooms' area before and should have known better, and a jury would have to decide. QUALIFIED IMMUNITY DENIED. Detective Tou appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: § 1983 exists to deter state officials from violating constitutional rights; failing that, it provides relief for victims of deliberate violations, but not if any violations were the products of reasonable mistake. Without question, Detective Tou's actions amounted to a warrantless search of Plaintiff's home, which is normally an unreasonable search under the Fourth Amendment. However, the Fourth Circuit ruled, on these specific facts, Detective Tou's mistakes were reasonable as a matter of law. He visited the rooms beforehand, which showed due diligence, but the trial court's ruling implicity penalized him for that, since if he had never visited them, a claim of mistake would have been even more plausible. Though carrying copies of the warrants with him might have been preferable, no court has ever required that, and the Fourth Circuit would not hold Detective Tou to what was not required. Once in the room, Detective Tou was entitled to take reasonable protective measures, such as display of weapons and handcuffing occupants, which he discontinued as soon as he realized his error. Plaintiff suffered neither unreasonable search nor excessive force. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause remanded for further consistent proceedings.

The concurrence agreed with the result and the reasoning, but wrote separately to emphasize that the trial court incorrectly intended to submit qualified immunity to the jury, when in fact qualified immunity is supposed to immunize defendants from trial as well as liability.

EDITORIAL: What a wuss--PTSD from once being incorrectly searched for a minute? Oh please. Get a grip! Get a life! Well, what do you expect when college kids have been told for the last 40 years that the only thing in the entire universe that matters is YOUR PERSONAL RIGHTS and the police stay up nights thinking of new ways to violate them. It was a mistake--get over it. If you have to sue SOMEbody, go sue the morons who put the room numbers on the wall and not on the doors.

Hope the rest of the op turned out all right. Even in the academic ivory tower, drug deals and other bad things need police attention before they turn violent.

4A 4C 2006: Drug Warrants, Like Breakfast At Denny's, Can Be Served Anytime

UNITED STATES v. RIZZI, 434 F.3d 669 (4th Cir. 2006), No. 05-4240, 2006 U.S.App. LEXIS 450, on appeal from USDC-DMD, before USCJ Niemeyer, SrUSCJ Hamilton, USDJ-WDNC Conrad by designation, opinion by Niemeyer, filed 09 Jan 2006.

LONG STORY SHORT: Statute specifically authorizing search warrants for drugs to be served at night prevailed over criminal procedure rule generally requiring search warrants to be served only in the daytime, and the statute was not unconstitutional under the Fourth Amendement. Binding in MD, NC, SC, VA, WV.

FACTS: During an ongoing drug activity investigation at a particular bar, Baltimore PD officers saw Defendant apparently selling drugs out of his vehicle and in the bar's restroom. The officers found cocaine residue on abandoned trash bags from Defendant's home, and learned from federal LE that Defendant was a convicted felon and therefore not allowed to have firearms. Baltimore officers swore out a search warrant from state court directing them "forthwith" to search Defendant's house and vehicle for drugs, firearms, money, records, and drug paraphernalia. At 0430 (before sunrise) two days later, 24 federal, state, and Baltimore officers knocked and announced at Defendant's front door. They waited 15 to 20 seconds before forcing entry, arresting Defendant as he was walking up the stairs from where he had been asleep in the basement. Officers found no drugs, but after they Mirandized Defendant, he directed them to firearms in the basement.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland for possessing firearms while a convicted felon. Defendant moved to suppress the firearms, arguing that Federal Rule of Criminal Procedure 41(e) required all warrants to specify daytime execution unless the issuing judge authorized otherwise for good cause. The United States conceded that good cause did not preexist, but argued that 21 U.S.C. § 879 prevailed, because it specifically authorized that warrants relating to controlled substance offenses "may be served at any time of the day or night if the judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time."

The trial court ruled that the warrant, since it did not authorize service at night, fell under Rule 41(e), and § 879 began after Rule 41(e) ended, and thus did not control. SUPPRESSION GRANTED. The United States appealed to the U.S. Court of Appeals for the Fourth Circuit, and Defendant argued for the first time that even if § 879 prevailed, it amounted to a blanket exemption to the daytime search requirement for a class of cases, violating the Fourth Amendment.

DECISION: As a rule, specific laws trump general laws on the same subject. Here, Rule 41 covers search warrants generally and requires a special showing for night service, but § 879 specifically addresses drug warrants. Supreme Court precedent and the plain language "may be served at any time of the day or night" so long as the issuing court "is satisfied" that probable cause exists, and § 879's expression of congressional drug policy meant that it took away all Rule 41 authority over search warrants involving drug crimes. In the Fourth Circuit, therefore, search warrants involving violations of drug laws may be served anytime, so long as probable cause supports the warrant itself.

As to Defendant's Fourth Amendment argument, the Fourth Circuit addressed it as part of the review of the trial court's rejection of § 879, even though Defendant did not raise the issue below. Statutes may not except a class of searches from component protections of the Fourth Amendment. For example, the Supreme Court has held the knock-and-announce rule to be a simple and universal Fourth Amendment protection, subject only to case-by-case exceptions. However, the Supreme Court has never held daytime-only searches to be a Fourth Amendment rule, not least because that issue is much more complicated than knock-and-announce. Some people work during the day and sleep at night, and some days are holidays when searches would be more disruptive than on a regular night. § 879's recognition of law enforcement's special need for advantages against drug dealers did not fall below Fourth Amendment minimums and was within the government's police power. SUPPRESSION REVERSED; cause remanded.

EDITORIAL: Though I think 21 U.S.C. § 879 could have been better drafted--in fact, on first reading it, I thought Defendant had a good point--the Fourth Circuit is right that if the Supremes haven't implanted a particular requirement into the Fourth Amendment, it's fair game for legislation. It was news to me that a state warrant could be subject to federal law if the case went federal. Well, now I know.

Predictably, this guy pleaded to the charge and accepted a year and a day in prison, on condition that he could appeal the suppression again. He argued, among other things, that 24 police officers were just too many to be constitutional. On 12 Mar 2007, the Fourth Circuit flushed it in an unpublished opinion, noting that no court has ever ruled a search unreasonable on grounds that there were just too many cops present. If the excessive armed warm bodies had tried to intimidate him into confessing, that would have been another matter. Also, 15 to 20 seconds was plenty long to wait. Good job, Fourth.

4A 4C: Staying With Cooperating Witnesses Can Be Hazardous To Your Stealth

UNITED STATES v. MORELAND, 437 F.3d 424 (4th Cir. 2006), 2006 U.S.App. LEXIS 4166, on appeal from USDC-WVSD, before Chief USCJ Wilkins, USCJ Luttig, USDJ-VAED Kelley by designation, opinion by Wilkins, filed 22 Feb 2006.

LONG STORY SHORT: Defendant's host, who happened to be a CI, consented to a search of the residence by opening the door to police when they knocked, and evidence seized during Defendant's arrest would not be suppressed. Binding in MD, NC, SC, VA, WV.

FACTS: A confidential informant tipped off West Virginia state troopers that someone named Bones would be coming to CI's house to sell cocaine base. Bones showed up, but instead of staying, dropped off Defendant, and CI invited Defendant to stay. At CI's request, Trooper Perdue drove to CI's house with Trooper Berry, who gave Defendant marked currency in exchange for 5.93g cocaine base.

At 0200 the following morning, officers including Trooper Perdue knocked on CI's door and announced their presence. CI could not understand them through the door, and opened it. Once he saw the officers there, he considered them welcome to come in. They did so, even though they did not expressly ask permission and CI did not expressly give permission; rather, they directed CI to stand aside and he complied. Officers arrested Defendant, who had 1.92g cocaine base and $420 in marked bills that Trooper Perdue had given him for the earlier purchase.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Southern District of West Virginia on two counts of possession with intent to distribute cocaine base. Defendant moved to suppress all evidence taken after his arrest, arguing that the officers had neither a warrant nor the homeowner's consent to search. The trial court held that CI's close relationship with police and his implied consent were enough to make a warrant unnecessary. MOTION TO SUPPRESS DENIED. The U.S. introduced the cocaine base and money as evidence at trial, and the jury convicted Defendant on both counts. The trial court departed downward from the guideline of 30 to life as a career offender, holding that a sentence that severe would overrepresent Defendant's criminal history, and imposed the statutory 10-year minimum. Defendant appealed his convictions, and the U.S. cross-appealed his sentence, to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: The trial court made no clear factual errors in finding that CI had a close relationship with law enforcement and that he meant to consent to the officers' entry. Reasonable officers could have taken CI's voluntarily opening the door and not objecting to entry, combined with CI's cooperation in setting up the controlled buy earlier in the day, as a totality of circumstances establishing consent to entry and search for Defendant. DENIAL OF SUPPRESSION AFFIRMED. Since Defendant's trial was otherwise fair, his convictions would be affirmed as well.

However, while the trial court reasonably varied from the advisory guideline sentence, the amount of the variance was not reasonable. SENTENCE VACATED and remanded to the trial court for imposition of not less than 20 years.

EDITORIAL: Simple and sweet. I even agree with the sentencing decision. Gold star to whoever developed the CI here. The result was a dead-bang case and a safe, swift arrest.

4A 4C 2006: Plenty Of Reliable Intel Makes Lemonade From Dry Hole, But About That Crack/Powder Disparity ...

UNITED STATES v. EURA, 440 F.3d 625 (4th Cir. 2006), NO. 05-4437, 05-4533, 2006 U.S.App. LEXIS 4535, on appeal from USDC-VAED, before USCJs Wilkinson, Michael, SrUSCJ Hamilton, opinion by Hamilton, concurrence by Michael, filed 24 Feb 2006.

LONG STORY SHORT: Even though the warranted search of Defendant's house turned up no drugs, the police already had enough reasonable suspicion for a K9 sniff of Defendant's vehicle without offending the Fourth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: Fredericksburg, VA PD's narcotics unit knew Defendant to be a crack dealer. Relying on a confidential source who had repeatedly bought crack cocaine there, DEA agents obtained a search warrant for Defendant's house in Fredericksburg, VA. DEA agents served the warrant at 2130, finding Defendant at home and handcuffing him for safety reasons. Agents discovered several "automatic" weapons, which Defendant admitted were his. An unidentified person said, and DMV checks confirmed, that two cars on the street were Defendant's. After Defendant refused consent to search the cars, a K9 unit walked around the cars, alerting to the presence of drugs in one of them. Agents opened the car and with K9 assistance found 11g crack, 26.6g ecstasy, and a loaded firearm. They never did find any drugs in Defendant's house.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of Virginia for possession with intent to distribute 50g or more of crack, possession with intent to distribute 5g or more of crack, and possession of a firearm in furtherance of a drug trafficking offense. Defendant moved to suppress all evidence found in his car, arguing that once the warranted search of his house turned up empty, the Fourth Amendment required him to be left in peace. MOTION TO SUPPRESS DENIED. A jury acquitted Defendant of possessing 50g or more of crack, but convicted him of possessing 5g or more and of possessing a firearm in furtherance of a drug trafficking offense.

The trial court gave him 60 months for the crack conviction, which was the mandatory minimum and below the 78 months bottom guidelines, but consistent with the Sentencing Commission's repeated recommendations to narrow the 100:1 crack/powder ratio. Defendant also got 60 months minimum mandatory for the firearm count, which the trial court ran consecutively, for a total of 120 months. Defendant appealed his convictions and sentences to the U.S. Court of Appeals for the Fourth Circuit, arguing that the motion to suppress should have been granted. The United States cross-appealed the crack sentence as unreasonably not in keeping with congressional intent to sentence crack offenders to 100 times what the same amount of powder cocaine would justify.

DECISION: Agents needed reasonable suspicion that drugs might be found in Defendant's car in order to detain it long enough for a K9 sniff. Reasonable suspicion, though, is not reducible to a neat set of rules; it depends on common sense and practical considerations of everyday life. Less than probable cause, but at least a minimal level of objective justification, is the hallmark of reasonable suspicion. By no means may the police always search a subject's car in hopes of finding drugs that were not in his home, but neither does such a disappointment negate all of the information that established probable cause to issue the search warrant. Here, many pieces of reliable information about Defendant's drug dealing added up to reasonable suspicion for a K9 sniff. Once the K9 alerted to Defendant's car from the outside, the agents had probable cause, by Fourth Circuit standards at least, to open the car and search further. The trial court correctly denied Defendant's motion to suppress. CONVICTIONS AFFIRMED.

The trial court was not necessarily free to vary from the congressional intent of 100:1 crack/powder sentencing and substitute the Sentencing Commission's recommendations to bring crack and powder cocaine sentences closer together. While trial courts might be justified in thinking this treatment inequitable, some trial courts would fix it by reducing crack sentences, and others would increase powder sentences, leading to massive inconsistency. Trial courts may not categorically reject the 100:1 ratio because it seems unfair, but must identify individual aspects of each defendant's case that justify variance. Here, there were no facts about Defendant's case that removed it from the typical crack offense, so the trial court should not have dropped below the bottom of the advisory guidelines. SENTENCE VACATED as to the crack count and REMANDED for imposition of 78 months bottom guidelines, consecutive to 60 months for the firearm count.

The concurrence agreed with the suppression decision, but concurred only in the judgment of 78 months instead of 60, but extensively discussed the significant evidence for reduction of the 100:1 ratio as exaggerating the effects of crack over powder.

EDITORIAL: Another dry hole that became not so annoying after all. Now this dope-slinger knows that moving his stash off premises doesn't help him, because cars on a public street are much LESS protected than private homes on private lots are. Good on DEA for building a strong case before getting a warrant, and it saved their bacon. I put "automatic" weapon in quotes because they must have been only semi-automatic, otherwise this guy would have been charged with possession of unregistered machine guns.

Then there's those U.S. Sentencing Guidelines, which are supposed to be dead, but they rule us from their mass grave. Even when, for once, they seem to help the defendant, out they go, because of politics. Again, I'm uncomfortable with the government being allowed to appeal sentences for anything other than rank illegality. Crack is BAD but not 100 times badder. I'd increase the powder sentences to make things less unfair.

4A 4C 2006: Good Faith Exception Applies To No-Knock Search Warrants

UNITED STATES v. SINGLETON, 441 F.3d 290 (4th Cir. 2006), No. 04-4108, 2006 U.S.App. LEXIS 7201, on appeal from USDC-MDD, before USCJs Niemeyer, Motz, King, opinion by Motz, filed 23 Mar 2006.

LONG STORY SHORT: Police reasonably relied in good faith on a no-knock warrant even if exigent circumstances might no longer have justified not knocking and announcing, and evidence would not be suppressed. Binding in MD, NC, SC, VA, WV.

FACTS: Officers of the Edgewood, MD PD applied for a search warrant to seize evidence of drug sales from Defendant's home. Officers requested a no-knock warrant for safety reasons because Defendant had a number of prior arrests, including second-degree murder in 1987 (although he had only one minor arrest since then); Defendant's apartment was in an open air drug market with a history of shootings and other violence; and the only way to Defendant's apartment was over open ground, where other residents would see the officers and warn Defendant. The court granted the no-knock warrant, and officers executed it that way.

In a locked safe were a 42g crack cookie, three baggies of marijuana, $1,400 cash, and a loaded handgun. Defendant admitted that he lived there, took all responsibility for the gun and drugs in the safe, and assured officers (correctly) that no other contraband was in the house. Later, in jail, he told an officer "I can't believe I did something this stupid."

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland for possession of 5g crack with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm while a convicted felon. Defendant moved to suppress the fruits of the search, because no exigent circumstances justified a no-knock warrant and the officers could not have relied in good faith on such a warrant. MOTION TO SUPPRESS DENIED. The United States had the gun, drugs, and incriminating statements admitted over objection at trial, and the jury convicted Defendant as charged. Defendant appealed his conviction and sentence to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Police serving a search warrant must generally knock and announce before forcing entry, unless they have a particularized basis to reasonably suspect that knocking and announcing would be met with violent resistance. Here, the facts that Defendant was a suspected drug dealer and that neighbors could see the officers coming were not particular to Defendant's situation, and by themselves would not justify immediate entry. Defendant's violent arrest history was 14 years old and no contemporary evidence suggested beforehand that Defendant was armed.

Nonetheless, in a question of first impression in the Fourth Circuit, officers may reasonably rely on a judicially-issued no-knock warrant, even if it is not clearly necessary for officer safety, and the good faith exception will apply to keep the evidence from being excluded. Since police had applied in good faith and gotten a warrant, penalizing the officers executing it would not deter police misconduct. DENIAL OF SUPPRESSION AFFIRMED; CONVICTION AFFIRMED; but SENTENCE VACATED for unrelated reasons and Defendant should be resentenced.

EDITORIAL: Since then, of course, the Supremes have gone further and flatly said that no-knock violations are not grounds for suppression, on the same reasoning that it would not prevent police misconduct. Police will find the evidence anyway, and who's to say how long is not long enough--courts have enough to do without having to decide whether five seconds, or two, or ten, or thirty, is long enough to wait. Liberals have squalled about this, but they do not carefully read the rest of the Supreme Court opinion, which says that officers still may be SUED for not waiting long enough. Not that truth matters to liberals--John Whitehead, the Christian leftist who never met an American soldier or cop he liked, simply lied about what the Supreme Court said.
Now I'm not the world's expert on serving search warrants, but no-knock warrants are a tool in the toolbox, not the default choice. As the guys in Atlanta found out, the 93-year-old great-grandma inside has no way to know you're the police if you just start busting down the door in the middle of the night, and she may start a gunfight that can have no winners.

4A 4C 2006: When Subject Shot First, OIS Was Justified, Quack Expert Wasn't

CARR v. DEEDS, 453 F.3d 593 (4th Cir. 2006), No. 05-1472, 05-2186, 2006 U.S.App. LEXIS 17461, on appeal from USDC-WVSD, before USCJs Traxler, Gregory, SrUSCJ Hamilton, opinion by Traxler, filed 21 Jul 2006.

LONG STORY SHORT: When decedent had credibly threatened to kill himself and others rather than go to jail or a mental hospital, was known to possess a handgun, and shot at officers instead of submitting to arrest, a trooper who shot at him was entitled to qualified immunity. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant, a Trooper of the West Virginia State Police, arrested Decedent on 20 June 2001 on an arson warrant. Medical evaluation at the jail showed that Decedent had minor cuts and scrapes, which he claimed Defendant had inflicted. Decedent did not file any complaints about this incident.

Plaintiff, Decedent's mother, obtained a court order on 10 July 2001 for Decedent to be involuntarily committed for a mental health examination due to his addictions to alcohol and controlled substances, and because Decedent had said he would rather take a bullet in the head than go to jail again. Decedent, who also had two outstanding arrest warrants, was last seen leaving a friend's house, smoking marijuana and carrying a handgun, after telling them he would do what it took not to go back to jail.

Deputy Farmer of the Greenbrier County Sheriff's Office spotted Decedent's vehicle and pursued it. After a few miles, Decedent stopped in the middle of the road and ran away. Deputy Farmer ran after him, and Decedent fired twice at him and disappeared into the woods. Deputy Farmer called for assistance, and many officers including Defendant converged on the area. Over the radio, the officers heard that a gunman had tried to stop a motorist nearby.

Defendant and Trooper Bradley saw Decedent approach them in a crouched position, gun in hand. Trooper Bradley ordered Decedent to drop the weapon, but instead he dropped to the ground and began firing. Defendant fired his rifle and Trooper Bradley fired his shotgun while ordering Decedent to drop his weapon, but he kept firing until the lawmen killed him with more gunfire. A medical examiner's report indicated that multiple undetermined shotgun wounds to the head, back, abdomen, and upper and lower extremities were the cause of death, and there was no evidence of close range firing on the skin.

PROCEDURE: Plaintiff sued Defendant and others in U.S. District Court for the Southern District of West Virginia per 42 U.S.C. § 1983 for violating Decedent's Fourth Amendment right to be free from unreasonable seizure, both as to the 20 June arrest and the 10 July gunfight. Attached to the complaint were reports from a purported independent medical examiner from California who concluded that the officers had unlawfully executed Decedent by means of close-range handgun bullets to the head after the shotgun wounds had disabled and disarmed him. Defendants submitted their required disclosures as to their medical expert, but Plaintiff supplied no further information about theirs.

After discovery closed, Defendants moved for summary judgment on qualified immunity grounds, and also to exclude Plaintiff's expert. The trial court ruled that Decedent's injuries in the 20 June arrest were de minimis, and that his death on 10 July was justified. QUALIFIED IMMUNITY GRANTED. Also, since Plaintiff had more than a year to provide her expert disclosures, her expert would be excluded. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: While the intrusiveness of a seizure by deadly force is unmatched, officers may use deadly force if they have probable cause to believe that a subject poses a threat of serious physical harm to the officers or others. Officers' decisions to use deadly force are not subject to the luxury of hindsight, and if the officer acted as a reasonable officer would have at that time, he will not be liable.

Here, Decedent had two warrants, a mental commitment order, a handgun, a history of threats to himself and others, and expressed intent not to be taken alive. He shot at the first officer he saw, and then when Defendant and his partner ordered him to disarm himself and surrender, he shot at them too. No record evidence contradicted this scenario. The Fourth Circuit had no trouble exonerating Defendant for shooting back.

Neither did the trial court abuse its discretion in excluding Plaintiff's expert, who provided the sole evidence for Plaintiff's contention that Defendant and others had executed Decedent after he was disarmed and no longer resisting. Expert disclosures are often the centerpiece of cases that depend on expert testimony, and the civil procedure rules requiring full and timely expert disclosure are to be taken very seriously. All Plaintiff did was attach dubious reports to her complaint, without listing his qualifications, prior cases, publications, or compensation, leaving Defendants unable to prepare for deposing him. Plaintiff did not show substantial justification for noncompliance with expert disclosure rules, so the trial court's discretion to exclude Plaintiff's expert would not be disturbed.

As to the 20 June arrest, Decedent's injuries were de minimis. No evidence showed that Defendant inflicted them maliciously or sadistically, or even (other than Decedent's claims to his family, which were hearsay) that Defendant inflicted them at all. The trial court's judgment was AFFIRMED in all respects.

EDITORIAL: I guess mothers are entitled to act this way, but assclown trial lawyers and their assclown quack doctors are not. No wonder they never provided any of his material, because it would have made them look even stupider than they already did. What's more, none of the gunshot wounds were rifle bullets, but what do they do? According to the opinion, they sue the officer with the RIFLE (despite the lack of rifle wounds) and don't get around to serving process on the officer with the SHOTGUN (despite the abundance of shotgun wounds). Who's picking on whom here?

Not only that, why didn't the Fourth Circuit or anybody else notice that since Trooper Deeds didn't even hit the guy, he should have walked on that basis alone! If you shoot at someone and neither hit him nor induce him to surrender, you haven't "seized" him and can't be liable--it's that simple.

Lord's peace on Troopers Deeds and Bradley for doing what they had to do in this tragedy.

4A 4C 2006: Looking Inside Bicycle Handlebar Is A Search Incident To Arrest

UNITED STATES v. CURRENCE, 446 F.3d 554 (4th Cir. 2006), No. 05-4894, 2006 U.S.App. LEXIS 11090, on appeal from USDC-VAED, before Chief USCJ Wilkins and USCJs Williams, Shedd, opinion by Shedd, filed 04 May 2006.

LONG STORY SHORT: After arresting a person riding a bicycle, police may remove the end cap from the bicycle handlebars and look inside as a search incident to arrest. Binding in MD, NC, SC, VA, WV.

FACTS: A confidential informant contacted Richmond, VA police and relayed a detailed description of a man on a bicycle selling drugs at a particular street corner. Detectives approached the location and found Defendant, who matched the description. Defendant submitted to a frisk, which revealed only money, but when Defendant identified himself, detectives discovered an outstanding arrest warrant. While Defendant was under arrest pending confirmation of the warrant, a detective, aware that drug dealers sometimes hide drugs there, slid the end cap off of Defendant's bicycle's right handlebar without using tools. Inside the hollow handlebar were baggies containing a substance that looked like, and later tested to be, crack cocaine. Defendant, who remained close to his bicycle the whole time, then made incriminating statements.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of Virginia for possession of crack cocaine with intent to distribute and possession of crack cocaine with intent to distribute in a school zone. Defendant moved to suppress the crack and his incriminating statements, arguing that a warrantless search incident to arrest could not include the inside of the handlebar. The trial court analogized the minimal disassembly of the end cap to a search of a car trunk, which is not within an arrestee's area of immediate control, and ruled the search unreasonable because its scope exceeded the purpose of searches incident to arrest. MOTION TO SUPPRESS GRANTED. The United States appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Searches incident to arrest are an exception to the general warrant requirement, because arrestees might have weapons on or near them and also might want to hide or destroy evidence. Such searches may accompany any arrest, regardless of whether any particularized suspicion exists, and can include open or closed spaces or containers within the arrestee's lungeable area.

Defendant's arrest was reasonable as pursuant to an outstanding warrant, and the search of his handlebar was substantially contemporaneous with the arrest. His bicycle remained within his immediate area, but the question was whether removing the end cap and looking inside the structure was reasonable. The Fourth Circuit ruled that a detective's pulling off the easily removed end cap was less like opening a car trunk and more like opening a simple closed container such as a drawer or bag, which is allowed even if the container is locked. Though the Fourth Circuit cautioned that searches of all parts of a bicycle incident to arrest would not henceforth always be reasonable, under the specific facts of the case, the minimal intrusion into Defendant's handlebar was not unreasonable under the Fourth Amendment. GRANT OF SUPPRESSION REVERSED; cause remanded for further proceedings.

EDITORIAL: Good show. Also a bit of education, for me at least. Who'd a thunk to put your stash in the handlebar? I'd be more afraid of having it slip down the handlebar and then having to cut the handlebar open. I guess cocaine is more valuable than your average handlebar, though.

4A 4C 2006: Not-So-Happy Trail Over Private Property Was An Unreasonable Seizure

PRESLEY v. CITY OF CHARLOTTESVILLE, 464 F.3d 480 (4th Cir. 2006), No. 05-2344, 2006 U.S.App. LEXIS 24048, on appeal from USDC-VAWD, before USCJs Motz, Traxler, Shedd, opinion by Motz, concurrence in part and dissent in part by Traxler, filed 22 Sep 2006.

LONG STORY SHORT: A city's official map showing a public walking trail over a nonconsenting, uncompensated person's property, resulting in numerous trespasses and significant damage, amounted to an unreasonable seizure and violated the Fourth Amendment, even if it was also a possible taking under the Fifth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: In 1998, the Rivanna Trails Foundation published a map showing a walking trail over Plaintiff's land, and the City of Charlottesville posted the map on its official website. Plaintiff was mostly occupied with caring for her husband in a rest home, and did not realize the extent of the problem until her husband died in 2001. She came home to find hikers constantly trespassing on her land of less than one acre, destroying property, and sometimes setting up overnight campsites. Plaintiff posted many "no trespassing" signs, regularly called the police, and eventually installed razor wire. The City passed an ordinance outlawing razor wire and prosecuted Plaintiff for breaking it, but the charges were dismissed. By 2005, Rivanna Trails Foundation had not changed the trail map, and it was still posted on the City's website.

PROCDEDURE: Plaintiff sued the City and RTF in U.S. District Court for the Western District of Virginia per 42 U.S.C. § 1983, alleging the facts above and arguing that Defendants had conspired to violate her Fourth Amendment right to be free from unreasonable seizure and her Fourteenth Amendment due process rights. Defendants moved to dismiss the complaint for failure to state a claim. The trial court had to take the facts alleged in the complaint as true for purposes of the motion, and acknowledged that under those facts there might have been a Fifth Amendment taking, but no violation of either the Fourth or Fourteenth Amendment. MOTION TO DISMISS GRANTED; case closed. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Motions to dismiss test only the legal sufficiency of the complaint's alleged facts. Defenses, evidence, and witness credibility are not a factor. Civil rights complaints are entitled to special care in the Fourth Circuit, and may be dismissed only if the facts suggest no plausible legal theory at all. Some government actions may violate more than one constitutional right at the same time. Unless a specific constitutional provision overrides another general principle, plaintiffs may sue for as many violations as the facts support.

The Fourth Amendment protects some real property--at least a home and its curtilage--against unreasonable seizure. As it happens, a seizure may sometimes also be a taking, and subject to Fifth Amendment regulation as well. The key difference is that a seizure must be unreasonable to violate the Fourth Amendment, and a taking must be without just compensation to violate the Fifth Amendment. Some seizures are not takings at all, such as civil forfeitures. However, a seizure need not be a complete deprivation of possession, but only a meaningful interference with possessory interests.

Only governments can violate constitutional rights, but here, a private foundation acted as a government agent or with the participation and knowledge of government officials to publish a knowingly erroneous map that encouraged people to walk over Plaintiff's land at will. This resulted in a veritable army of trespassers who annoyed Plaintiff and damaged her property, and sometimes camped out overnight, all of which was certainly a meaningful interference with possessory interests.

The Fourteenth Amendment due process claim could not stand because Virginia state law provided an inverse condemnation procedure whereby Plaintiff could have tried to obtain compensation. Neither could Plaintiff claim deprivation of substantive due process, because it fell under the rule that specific protections in the Fourth and Fourteenth Amendments cover more general notions of substantive due process. In the end, though, she did sufficiently allege a Fourth Amendment unreasonable seizure. DISMISSAL AFFIRMED IN PART as to the Fourteenth Amendment claims; DISMISSAL REVERSED IN PART as to the Fourth Amendment claims; cause remanded for further proceedings.

The dissent held that Plaintiff at most stated a Fifth Amendment takings claim and to allow a simultaneous Fourth Amendment seizure claim would undercut well-established jurisprudence under both Amendments. Also, governments would now be exposed to significantly more liability for what traditionally would have been no more than an inverse condemnation proceeding. The concurrence agreed that Plaintiff's Fourteenth Amendment claims could not survive.

EDITORIAL: This poor lady comes home, newly widowed, to find a parade of enviro-whackos so dedicated to disrespect for private property that not even a hundred No Trespassing signs will dissuade them. The City of Charlottesville not only won't prosecute them, but prosecutes HER for putting up razor wire (which is normal in Fayetteville) because they love the enviro-whackos so much. Yeah, it's sue time.

Unless, of course, maybe things are not as they seem. Remember, this is a 12(b)(6) motion to dismiss, and we all have to put our blinders on, or hold our noses, and pretend that all but the most utterly schizophrenic parts (like black helicopters mutilating cattle and spreading AIDS by mosquito) rank right up there with the Sermon on the Mount. Now I'll admit that governments are capable of astonishingly stupid constitutional violations, but I'll hold my opinion on this one until some more facts come out.

If this case is indeed somewhat as bad as it looks now, then I agree with the Fourth Circuit. If governments are now going to be looking at punitive damages for screwing with peoples' homes and curtilages, then that should discourage them from doing so. In the age where the Supremes think it's a "public purpose" for governments to confiscate private property and give it to developers so they can build subsidized for-profit establishments, we need all the punishment we can get to keep governments in line.

4A4C 2006: Jury Must Decide Furtive Movement Shooting Of Wounded Man, But Unwounded Woman Wasn't "Seized"

SCHULTZ v. BRAGA, USCA-4 No. 05-1604, 05-1610, 455 F.3d 470, 2006 U.S.App. LEXIS 19170, on appeal from USDC-MDD, before Circuit Judges Wilkinson and Traxler and USDJ-VAED Williams, opinion by Traxler, filed 31 July 2006.

LONG STORY SHORT: When an FBI agent mistook an innocent car passenger for a bank robber, and fired a shot him when he appeared to be reaching for a weapon, but the passenger and others testified that he made no such move, the firing agent was not entitled to qualified immunity, and a jury would have to resolve the conflicting testimony. However, the driver of the car had no claim because the agent did not use any force on her and could not have seized her under the Fourth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: FBI agents were surveilling a 7-Eleven, where Agent Bronson had told them they would see a male bank robbery suspect wearing a white baseball cap arrive in a red vehicle being driven by the suspect's red-haired girlfriend. The suspect, a career criminal and drug addict believed to be seeking suicide by cop, had confessed his involvement in the robbery to King, who told the suspect he would wait in the 7-Eleven to give the suspect clothes and money to help him escape. The suspect did not know that King was cooperating with FBI. As expected, the agents observed a red vehicle park beside the King's truck. A male wearing a white baseball cap got out of the red vehicle, entered the 7-Eleven where the CI was waiting, and returned to the red vehicle, driven by a red-haired female. The arrest team followed this red vehicle.

Agent Hanburger, commanding the arrest team, decided that probable cause existed to stop the red vehicle, and the arrest team executed a dynamic stop, exiting their vehicles yelling "Police," "FBI," "put your hands up," with rifles ready. Agent Kornek positioned himself forward of Harkum (driver), aiming his rifle at her. Agent Stowe, wearing an FBI vest, approached Plaintiff's (passenger) side from the front, aiming his rifle at Plaintiff while continuing to shout verbal commands. Defendant arrived behind Plaintiff, aiming his rifle [according to news reports, the rifle was a 5.56mm M4, the carbine version of the M16] at the back of Plaintiff's head, whereupon Agent Stowe shifted his aim to Harkum. Seconds later, Defendant fired one rifle bullet, which shattered Plaintiff's car window and fragmented on the D-ring of Plaintiff's seat belt, driving numerous metal and glass fragments into Plaintiff's face, seriously injuring him.

The agents extracted Plaintiff and Harkum from their vehicle and handcuffed them, just before Agent Brosnan and King arrived. King had been trying unsuccessfully to communicate to the agents that they were following the wrong red vehicle; the suspect and his girlfriend had driven by the 7-Eleven without stopping. Some blood drops and tiny fragments from Defendant's shot may have hit Harkum but did not injure her. She subsequently suffered from depression and PTSD.

Agent Stowe testified that he arrived first at the subject vehicle. Defendant arrived a second later and began ordering Plaintiff "show me your hands." Agent Stowe tried to open Plaintiff's (passenger) door, to find it locked, and then backpedaled a step, aiming his rifle at Harkum (driver) and ordering her to unlock the door, relying on Defendant to cover the "bank robber," actually Plaintiff. Plaintiff and Harkum testified that they were both focused on Agent Stowe. Harkum testified that she was looking right at Agent Stowe and therefore could see Plaintiff's hands raised up as ordered. Plaintiff testified that he kept his hands in view and began leaning to the right to unlock his door when Defendant's rifle discharged.

Defendant, however, testified that he ran up to the car as Agent Stowe was yelling "Police, FBI, get your hands up," but then Agent Stowe fell silent; Defendant never heard Agent Stowe order anyone to unlock a door. Defendant saw Plaintiff's hands still down, but after the fourth or fifth order from Defendant to raise his hands, Plaintiff instead turned to the left and reached down toward the center console. Since Plaintiff appeared to be trying to reach a weapon, Defendant fired one shot to stop him.

PROCEDURE: Plaintiff and Harkum sued Defendant and other agents in U.S. District Court for the District of Maryland per Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for excessive force in violation of the Fourth Amendment. After discovery, Defendant moved for summary judgment on grounds of qualified immunity. The trial court ruled that material facts were still in dispute as to Plaintiff's claim; QUALIFIED IMMUNITY DENIED as to him. However, the trial court also ruled that Defendant did not seize Harkum for Fourth Amendment purposes and could not have violated her rights; QUALIFIED IMMUNITY GRANTED as to her. Defendant and Harkum appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Qualified immunity protects LEOs from bad guesses in gray areas, but not those who choose to step over constitutional bright lines. While the intrusiveness of a seizure by means of deadly force is unmatched by any other type of seizure, courts must evaluate the officer's actions for objective reasonableness in light of the facts and circumstances he knew at the time of the incident, without any questions as to the officer's subjective intent and motive. Here, Defendant reasonably believed that the suspect was armed and dangerous and probably suicidal, and never mind that Plaintiff turned out not to be the suspect, a reasonable officer in Defendant's place would take appropriate defensive measures as the situation evolved.

However, Defendant and Plaintiff testified to virtually opposite facts. Defendant said he saw Plaintiff keep his hands down and then turn and reach toward the center console, where weapons could be hidden. Plaintiff said he raised his hands and began to lean away from the center console and toward the door lock as Agent Stowe was ordering him at gunpoint to do. A reasonable jury could credit the former witness and exonerate Defendant--or could credit the latter witness and find that Defendant shot Plaintiff with a highpower rifle for no good reason. DENIAL OF QUALIFIED IMMUNITY AFFIRMED in part.

As to Harkum, intentional acquisition of physical control must be present in order to constitute a seizure subject to Fourth Amendment regulation. Though the seizure may be of the wrong person or thing, the seizure must be willful. The classic example is of an officer shooting at a suspect, unintentionally missing the suspect, and unintentionally hitting an innocent bystander. The victim may claim negligence, but not wrongful seizure. A contrary example is an innocent motorist who suffers psychological injury from police gunfire aimed at her car and meant to stop her from driving off; the police achieved their goal of terminating her freedom of movement. Here, Defendant directed his force at Plaintiff, not Harkum, and if she was seized at all, it was when she submitted to a different agent's commands to raise her hands and unlock her door. Whether or not some blood drops or fragments may have struck her was irrelevant because Defendant did not mean to seize her. The Fourth Circuit would not stretch the Fourth Amendment to cover what was not a seizure. GRANT OF QUALIFIED IMMUNITY AFFIRMED in part.

EDITORIAL: What a mess, with only the slight consolation that the real suspect, Mike Blottenberger (must be a stage name), got caught not long after. Based on news reports, a Maryland grand jury got an earful about this case, including non-immunized testimony from the firing agent, and refused to indict the firing agent or any other agent. Astonishingly, to moi anyway, a lot of conservatives jumped all over the firing agent, saying he shouldn't be allowed to have a gun because this was the second time he shot an unarmed subject. Never mind that the other shoot was righteous by all accounts, some people just don't want federal agents running around armed.

I can't pass judgment at all, if this is all I know about it. I'll wait for the judge and jury to find the facts. Just to sort out what you see here took me about four hours! However, the Fourth Circuit should have not just affirmed the denial of qualified immunity, but should have dismissed that part of the appeal for lack of subject matter jurisdiction. As you and I know, appellate courts can only decide interlocutory appeals if they involve pure questions of law, and if any facts are still up in the air, no appellate court has the power to touch it. Maybe the Fourth Circuit does it a bit differently. I will also have to plumb the depths of just what is a seizure and what kind of crazy results are possible from the "intent to seize" rule. As I understand it, you walk if you misidentify an innocent man as a subject and shoot at him and miss, killing an innocent woman. That way, you get rewarded for both bad police work and bad marksmanship exercised simultaneously. I need an aspirin.

4A4C 2006: Dr. Feelgood's Dope-Slinging Justified Seizure Of All Patient Records

UNITED STATES v. HURWITZ, USCA-4 No. 05-4474, 459 F.3d 463, 2006 U.S.App. LEXIS 21425, on appeal from USDC-VAED, before Circuit Judges Widener and Traxler and USDJ-SCD Currie, opinion by Traxler, dissent by Widener, filed 22 Aug 2006.

LONG STORY SHORT: Attachments to the search warrant affidavit did not have to accompany the officers who served the search warrant, and when the offense in question involves a physician overprescribing controlled substances to many patients, the business is so permeated with crime that all patient records were subject to seizure. Binding in MD, NC, SC, VA, WV.

FACTS: In 2002, an unusual number of people in the McLean, Virginia area were arrested for illegal sale of prescription opoids, and several arrestees named Defendant, a medical doctor, as the source of their products. High-dose opoid therapy normally allowed a patient 195mg of morphine or 100mg of Oxycontin daily, but investigation indicated that Defendant was prescribing median dosages of 2,000mg per day to his patients, and some patients received up to 10,000 pills per month. Defendant charged his patients $1,000 "initiation fees" and $250 monthly "maintenance fees." Cooperating arrestees secretly taped Defendant admitting that it was not inconceivable that some of his patients were selling their meds. Medical authorities had disciplined Defendant twice before for overprescribing controlled substances.

Agent Lucas of DEA swore to a search warrant affidavit setting forth those facts, and in the warrant application wrote "See Attachment A of Affidavit" for a description of the property to be seized. Attachment A specified items in Defendant's "medical practice which constitute evidence of [drug trafficking]" including "[p]atient medical and billing files," without identifying any individual patient files. The court issued the warrant and ordered Attachment A and the affidavit sealed. During the search of Defendant's office, federal agents seized all of Defendant's patients' files, and did not bring the affidavit or Attachment A with them when they searched.

PROCEDURE: The United States indicted Defendant for over 60 drug offenses in U.S. District Court for the Eastern District of Virginia. Defendant moved to suppress all evidence found in his office on grounds that the warrant was fatally overbroad and that it did not name the things to be seized with sufficient particularity. The trial court disagreed; SUPPRESSION DENIED. Defendant was convicted of most offenses at jury trial and received a 25-year sentence. He appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the search warrant was invalid and that he had not gotten a fair trial.

DECISION: The Fourth Amendment requires that warrants particularly describe the things to be seized; otherwise, officers would be entitled to a general rummaging through peoples' property to find what they wanted. This particularity requirement applies to the warrant itself, not just the application for the warrant, but referenced documents can be made part of the warrant. Though other circuits might require both a reference in the warrant and attachment of the referenced document to the warrant, the Fourth Circuit only requires one or the other. The warrant in this case satisfied the requirement by referencing Attachment A to the warrant affidavit.

The fact (which Defendant asserted in the trial court and the United States did not contest, so it was a fact on appeal) that agents brought only the warrant with them, not Attachment A, was not a constitutional problem. Though the better practice is to bring the warrant and all referenced documents, not least because the searching officers can look at it to guide their actions, the Fourth Amendment does not require officers to bring the warrant with them, even if other rules or statutes might.

Neither was the warrant overbroad. Its supporting affidavit provided probable cause that Defendant was running a huge drug trafficking enterprise under the label of a medical practice. Defendant's prescribing practices were well in excess of medically excepted bounds and many of his patients were caught selling controlled substances that he prescribed to them. Defendant's business was so permeated with drug crime that officers needed to seize all patient records. DENIAL OF SUPPRESSION AFFIRMED.

However, Defendant's argument that his trial was unfair had merit. CONVICTIONS AND SENTENCE VACATED and remanded for new trial. The dissent related only to the issues at trial and not the motion to suppress.

EDITORIAL: Good decision in a hard case. I'm giving the guy every benefit of the doubt, because some of his patients at trial testified that he made their pain go away with lots of opoids, and being allergic to pain myself, I'm glad to hear that part. However, it looks like there was waaaay too much of a good thing going down. The feds sure can get carried away with these blanket seizures, though. When I was working the Payne Stewart crash case, I was one of the lowly associates going through boxes of documents (although there are far worse ways to spend a day, I tell you) that the FBI had just turned loose almost three years after swooping in and snatching essentially the entire charter business that had owned the unlucky Lear 35. There was no possible crime in that crash and they destroyed the business for nothing. I have no idea who had the political horsepower to order the FBI in on it. I'd sure like to know though.