Antoine JONES, Appellant v. Steve KIRCHNER, D.C. MPD Detective, et al., Appellees
No. 14-5257 Consolidated with 15-5088
United States Court of Appeals, District of Columbia Circuit.
Argued March 21, 2016 Decided August 26, 2016
835 F.3d 74
Jeremy S. Simon, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney. Peter C. Pfaffenroth, Assistant U.S. Attorney, entered an appearance.
Before: WILKINS, Circuit Judge, and GINSBURG and RANDOLPH, Senior Circuit Judges.
Opinion dissenting in part and concurring in the judgment in part filed by Senior Circuit Judge RANDOLPH.
GINSBURG, Senior Circuit Judge:
Plaintiff Antoine Jones appeals the district court‘s order dismissing his Bivens and § 1983 claims against individual agents of the Federal Bureau of Investigation and a Metropolitan Police Department detective arising out of a search of his
I. Background
During the course of a narcotics investigation, a federal magistrate judge in the District of Maryland signed a warrant to search Antoine Jones‘s home. The magistrate struck language in the warrant form that would have permitted its execution without time restrictions, causing the warrant to read, in relevant part:
YOU ARE HEREBY COMMANDED to search . . . the . . . place named above . . . serving this warrant and making the search (in the daytime—6:00 A.M. to 10:00 P.M.)
(at any time in the day or night as I find reasonable cause has been established).2
According to the allegations in Jones‘s complaint, at 4:45 AM on October 24, 2005, one MPD detective and 11 FBI agents executed the search warrant and arrested Jones at gunpoint in his bedroom. Jones v. Kirchner, 66 F.Supp.3d 237, 241 (D.D.C. 2014). During the course of the search, the officers seized 30 to 40 boxes of personal property. Id. Although Jones does not allege specifically what the boxes contained,3 he does allege the “Defendants found no evidence of any crime at the [home],” and that the seizure therefore “unlawfully exceeded the scope of the warrant.” Jones also alleges the officers broke into and entered his home “using an unauthorized key to gain entry,” “without knocking and announcing” their presence, and without the justification of “exigent circumstances.”
Jones has been incarcerated since his arrest. His first trial resulted in a hung jury and a mistrial. He was convicted after his second trial and sentenced to life in prison, but we overturned his conviction after concluding the Fourth Amendment prevented law enforcement officers from installing a GPS tracking device on Jones‘s car without a warrant and using it to monitor his movements for 28 days. United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff‘d sub nom United States v. Jones, — U.S. —, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). Jones‘s third trial resulted in another hung jury, after which he pleaded guilty and was sentenced to 15 years in prison.
In this case, Jones alleges, among other things, that the failure of the police to knock and announce before entering, their seizure of the property contained in the boxes, and their nighttime execution of the search violated his rights under the Fourth Amendment to the Constitution of the United States. See Am. Compl. ¶¶ 57-61. Jones sought damages from the FBI agents pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and from the MPD officer pursuant to
The district court held that under the standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), Jones had failed to “plead sufficient facts to raise his allegations” of a knock-and-announce violation and an unlawful seizure “from possibility to plausibility! [sic]” Id. at 245. Specifically, because the complaint asserted Jones was upstairs at the time of the entry, the district court said it “may infer that Mr. Jones did not hear a knock and announce, but no more.” Id. With respect to the seizure, the district court held the allegation was conclusory because the complaint “does not identify what property was seized, describe the scope of the [attached] warrant, nor allege how the seized items exceeded that scope.” Id. at 246. The district court also held the Defendants were entitled to qualified immunity for their nighttime execution of the search warrant. Jones timely appealed.
II. Analysis
“We review de novo the district court‘s
A. Plausibility of Allegations
The
Jones‘s complaint alleges the Defendants violated both these limitations. A complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotations omitted). As required by
Jones can try to prove the knock-and-announce violation by testifying that he did not hear a knock. If the Defendants did, in fact, knock, then they can so testify to refute Jones‘s claim. The task of resolving the conflicting accounts would fall to the finder of fact—judge or jury—who could decide how much weight to assign Jones‘s testimony after considering all rel-
Jones‘s allegation of unlawful seizure is also plausible. Maybe all of the items in the 30 or more seized boxes fell within the scope of the search warrant, specified in Attachment A, Doc. No. 619-6 in Jones, 05-cr-386 (May 22, 2012). Maybe some or all of the items did not. The district court will ultimately make that determination. Cf. United States v. Geraldo, 271 F.3d 1112, 1118 (D.C. Cir. 2001). But
B. Statute of Limitations
There is no federal limitations period or tolling rule for actions brought under
We do not apply Maryland law in this case, however. Where federal law is silent,
Quoting Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), the Defendants argue we must look to “the law of the State in which the cause of action arose,” but that dictum does not direct us to a different result. Id. at 387. In Wallace, the Supreme Court held that federal law, rather than state law, determines the accrual date of a § 1983 cause of action; which state‘s statute of limitations would have applied was not disputed.5 In fact, until 2009 no court had ever considered “which statute of limitations is appropriate when the constitutional tort occurred in a state other than the forum of the litigation,” Malone v. Corrections Corp. of America, 553 F.3d 540, 542 (7th Cir. 2009). In Malone the court imported the forum state‘s choice-of-law rules to determine which statute of limitations the forum state would apply. Id. at 542. This approach makes good sense because a state‘s “statute[] of limita-
Like Maryland, D.C. has a three-year statute of limitations for personal injury actions such as this. See Earle, 707 F.3d at 305 (citing
The Defendants nevertheless argue that tolling does not apply because the alleged knock-and-announce violation occurred immediately prior to Jones‘s arrest. If the Council of the District of Columbia did not require Jones to file his lawsuit from his jail cell, however, then it surely did not expect him to draft, file, and serve a complaint in the moments between the officers’ entry into his home and his arrest. In Rose v. Washington Times Co., 23 F.2d 993 (1928), the D.C. Court of Appeals interpreted an earlier statute that tolled a cause of action for libel during imprisonment. It explained:
There can be no doubt that the word imprisonment is used in this section in its plain, ordinary meaning. Imprisonment is the act of putting or confining a man in prison; the restraint of a man‘s personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion.
Id. at 994 (quoting Hyde v. Nelson, 287 Mo. 130, 229 S.W. 200, 201 (1921)). From the moment the Defendants entered Jones‘s home, he was not free to leave. Although he had not yet been handcuffed or given Miranda warnings, his liberty was sufficiently restrained that he was ‘imprisoned’ for purposes of
C. Issue Preclusion
The Defendants argue Jones is collaterally estopped from litigating the legality of the search and seizure because he raised these issues during the criminal proceeding as part of his motion to suppress. They also argue Jones‘s claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), in which the Supreme Court held a § 1983 complaint must be dismissed if a favorable judgment would necessarily impugn the validity of a prior conviction, unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. We reject both arguments.
1. Collateral Estoppel
Citing Allen v. McCurry, 449 U.S. 90, 105, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (Section 1983 claim for unlawful search barred by issue preclusion because the validity of the search had already been resolved in denying the motion to suppress), the Defendants contend Jones‘s claims are barred because they had already been resolved by the district judge on Jones‘s motion to suppress. “[A]mong the most critical guarantees of fairness in applying collateral estoppel,” however, “is the guarantee that the party to be estopped had not only a full and fair opportunity but an adequate incentive to litigate to the hilt the issues in question.” Prosise v. Haring, 667 F.2d 1133, 1141 (4th Cir. 1981), affirmed 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); see generally Restatement (Second) of Judgments §§ 27-29 (1982). Unlike the defendant in McCurry, Jones had little incentive to pursue further his motion to suppress because, whatever its merits, the remedy for the alleged constitutional violations at issue in this case probably would not have been suppression of the evidence seized at his home. See Hudson, 547 U.S. at 593 (rejecting suppression as a remedy when the causal connection between the discovery of the tainted evidence and the constitutional violation—in that case, failure to knock and announce—is remote).
Our dissenting colleague argues that Jones is barred from alleging the time of entry was 4:45 AM because on the motion to suppress, the district judge found the officers had entered after 6:00 AM. There are three problems with that argument. First, the Defendants never mention the factual finding that so animates the Dissent; after spending much of their brief arguing that the search as alleged would not have been unlawful, the Defendants said only that, “[h]aving litigated th[is] claim [] unsuccessfully in the criminal proceeding as part of a motion to suppress, Jones cannot now re-litigate [it] in a civil proceeding.” Defs.’ Br. 41. That will not do. “We apply forfeiture to unarticulated [legal and] evidentiary theories not only because judges are not like pigs, hunting for truffles buried in briefs or the record, but also because such a rule ensures fairness to both parties.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 137 (D.C. Cir. 2011) (internal citations and quotations omitted).
Second, Jones had no more incentive to appeal that finding than to appeal the conclusion that nighttime entry was not unlawful. As we have already explained, the remedy for the alleged violation likely would not have been suppression. Furthermore, any purported incentive to appeal the suppression ruling, as Jones points out, would have been negated by Jones‘s subsequent guilty plea, which rested at least in part upon evidence that was not seized from his home. See Reply Br. 25-26.
Third, collateral estoppel is particularly inappropriate because the factual finding was not necessary to the district court‘s decision denying the motion. See Trial Transcript at 4, Doc. No. 70 in Jones, 05-cr-386 (Feb. 19, 2013) (“I‘ve already ruled five times it‘s legally irrelevant. And I still stand by that. But to the extent I need to make findings of fact, I find that this search was executed after 6“); see generally San Remo Hotel, L.P. v. City & Cnty. of San Francisco, 545 U.S. 323, 336 n.16, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005) (explaining that collateral estoppel applies only to “an issue of fact or law necessary to [the court‘s] judgment“) (emphasis added).8
Evanson v. United States, 84 F.3d 1452 (D.C. Cir. 1995), aff‘g 878 F.Supp. 1 (D.D.C. 1995), upon which the Dissent (at 91-92) relies, is an unpublished summary affirmance that has nothing to do with case at hand. The alleged constitutional violations in Evanson were very different: they concerned whether the officers’ entry was consensual and whether the arrest was supported by probable cause. But even if the allegations had been identical, Evanson would have had an incentive to appeal because the Supreme Court had not yet decided Hudson. Further, the district court in Evanson noted multiple times that an issue must be “necessary” to a judgment for estoppel to apply. 878 F.Supp. at 3. As we have explained, that was not the case here.
2. Heck v. Humphrey
Heck v. Humphrey is no bar to Jones‘s claims. Jones‘s first conviction was vacated. Maynard, 615 F.3d at 549. His
D. Qualified Immunity for the Timing of the Search
The district court dismissed Jones‘s claim regarding the execution of the search warrant at 4:45 AM on the ground that the officers are entitled to qualified immunity, the doctrine that “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). Qualified immunity depends upon the answers to two questions: (1) Did the officer‘s conduct violate a constitutional or statutory right? If so, (2) was that right clearly established at the time of the violation? Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A right is “clearly established” if precedent from a controlling authority or “a robust consensus of cases of persuasive authority” put the constitutional question beyond debate. Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). In this case, the district court held that there was no Fourth Amendment violation because the “Fourth Amendment does not per se prohibit nighttime searches,” Jones, 66 F.Supp.3d at 246 (citing Youngbey v. March, 676 F.3d 1114, 1124 (D.C. Cir. 2012)), and that, in any event, Jones “cites to no cases in the Supreme Court or [the D.C.] Circuit clearly establishing that entry under the circumstances alleged” here was unconstitutional. Id.
The district court erred in holding there was no constitutional violation. Jones does not allege the timing of the search was unlawful merely because it took place at night; he alleges it was unlawful because it violated an express limitation on the face of the warrant.
The Fourth Amendment “guarantees . . . the absolute right to be free from unreasonable searches and seizures.” Bivens, 403 U.S. at 392. The search of a home is presumptively unreasonable unless authorized by a warrant, Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), which must be issued by a neutral judicial officer, see Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Unlike rules of criminal procedure and other sub-constitutional bodies of law, violations of which may be unlawful but are not necessarily unconstitutional, see Virginia v. Moore, 553 U.S. 164, 176, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (“[W]hile States are free to regulate . . . arrests however they desire, state restrictions do not alter the Fourth Amendment‘s protections“), compliance with the limitations of a warrant is
In this case the magistrate, as clearly indicated on the face of the warrant, affirmatively denied the Defendants permission to search Jones‘s house before 6:00 AM. The plaintiff alleges the Defendants nonetheless executed the warrant at 4:45 AM. Just as a warrant is “dead,” and a search undertaken pursuant to that warrant invalid, after the expiration date on the warrant, Sgro v. United States, 287 U.S. 206, 212, 53 S.Ct. 138, 77 L.Ed. 260 (1932), a warrant is not yet alive, and a search is likewise invalid, if executed before the time authorized in the warrant. If the Defendants executed the warrant when the magistrate said they could not, then they exceeded the authorization of the warrant and, accordingly, violated the Fourth Amendment.
In holding the alleged nighttime entry violated the Fourth Amendment, we reject the Defendants’ argument that
Indeed, a statute purporting to restrict the power of a court to define the limits of a reasonable search would raise a serious constitutional question. Cf. Dickerson v. United States, 530 U.S. 428, 437, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (“Congress may not legislatively supersede our decisions interpreting and applying the Constitution“).10 We need not resolve that question here, however, because regardless whether the magistrate should have permitted a nighttime search in this case, he did not. The warrant requirement “provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive
Nevertheless, we agree with the district court that the Defendants are entitled to qualified immunity, albeit for a different reason: It was not clearly established in Maryland in 2005 that the Fourth Amendment prohibits the nighttime execution of a daytime-only warrant. Although two of our sister circuits had by then so held, see O‘Rourke v. City of Norman, 875 F.2d 1465 (10th Cir. 1989); United States v. Merritt, 293 F.2d 742 (3d Cir. 1961), the Fourth Circuit, within which this search occurred, did not come to the same conclusion until after the search in this case. See Yanez-Marquez v. Lynch, 789 F.3d 434, 466 (2015). Indeed, as the Fourth Circuit noted in that case, an unpublished Fourth Circuit opinion from 2009 had treated “a nighttime search under the aegis of a daytime warrant as a mere Rule 41 violation, rather than as an unconstitutional search.” Id. at 467 (discussing United States v. Davis, 313 Fed.Appx. 672 (4th Cir. 2009)). To repeat, qualified immunity shields an officer from liability unless he reasonably should have known his conduct would violate the law. See Pearson, 555 U.S. at 231. If our learned colleagues on the Fourth Circuit believed as recently as 2009 that the nighttime execution of a daytime-only warrant is not a constitutional violation, then the police officers who work in that jurisdiction cannot be faulted for failing to appreciate in 2005 that their conduct was unconstitutional.
Until 2009 the Supreme Court “required courts considering qualified immunity claims to first address the constitutional question, so as to promote ‘the law‘s elaboration from case to case.‘” Camreta v. Greene, 563 U.S. 692, 707, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (emphasis omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).11 Today, which part of the qualified immunity analysis to address first is within the “sound discretion” of the court. Pearson, 555 U.S. at 236. Where “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right,” it may make sense to avoid the constitutional question. Id. at 237. This is not such a case, however. It seems to us an
Since Pearson, our court has often granted qualified immunity without reaching the constitutional question, but both the constitutional question and the answer are more clear in this case than in any of those. Here we need only follow the teaching of the Supreme Court, as have three other circuits, in order to protect the public from a particular type of unreasonable search. One of those circuits—the Fourth—surrounds the District of Columbia on all sides, and officers from Maryland and Virginia frequently cooperate with officers from D.C. on investigations. Resolving the constitutional question here ensures that officers will take care to abide by a magistrate‘s limitations regardless where in the Washington area the search is executed.
Conservation of judicial resources, see Dissent at 95, is a risible justification for avoiding a straightforward question such as this, cf. Pearson, 555 U.S. at 236 (“there are cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the ‘clearly established’ prong“), especially in view of the dramatic reduction in the caseload per judge of our court in recent years. Nor is doubt about the actual time of entry a relevant consideration in this case. That the facts of the case are as yet unsettled is
As the Supreme Court has warned, perpetually addressing only the clearly-established question “may frustrate the development of constitutional precedent and the promotion of law-abiding behavior.” Camreta, 563 U.S. at 706 (internal quotations omitted). We see no need to avoid the constitutional question here.
III. Conclusion
We affirm the district court‘s holding that the Defendants have qualified immunity for the timing of the search, reverse its dismissal of Jones‘s claims for unlawful seizure and no-knock entry, and remand
So ordered.
There are two basic and related reasons why I believe the majority errs in deciding that the defendants violated the Fourth Amendment when they allegedly executed a daytime search warrant at night. The first reason should have been conclusive. It is that collateral estoppel bars Jones’ claim about the timing of the search. In the
All that is before us in this case is Jones’ complaint, the fourth civil suit he has filed
In order to reach this constitutional issue, the majority opinion decides two new and significant points of law for this circuit: that alternative holdings do not give rise to collateral estoppel and that suppression is not the proper remedy for violation of a warrant‘s timing requirement. Jones raised neither of these issues in this court or in the district court, and yet the majority opinion decides both of them in order to reach a constitutional question that is irrelevant to the disposition of this case because of the defendants’ immunity.
In coming to these conclusions, the majority opinion also assumes the truth of Jones’ allegation. Yet in the criminal proceedings against Jones, the district court made an evidentiary finding that Jones’ allegation was false and that the search actually occurred after 6:00 a.m.
The search of Jones’ home was part of a coordinated take-down on the morning of October 24, 2005, in which FBI, Metro Police, and other officers simultaneously searched several different properties. More than half a dozen officers—including defendants in this case—testified that at 6:00 a.m., the FBI command center sent out the signal for all teams to execute their warrants. At Jones’ Moore Street house, Agent Steven Naugle—a defendant in this case—was team leader. Agent Naugle testified that the call “went out over the radio . . . at 6:00 a.m. to execute our search warrants.” Trial Transcript at 41, No. 1:05-cr-00386-ESH (Feb. 11, 2013), ECF No. 739. The team, which had been parked at a nearby shopping center, drove to Jones’ house and entered at approximately 6:15 a.m. Id. at 41, 75.
In his initial motion to suppress, Jones did not mention the timing of the search. He later filed two “Motion[s] for Reconsideration” of the motion to suppress, in which he raised the issue. Attached to his motions were affidavits from his wife and son claiming that agents had entered his home at 4:45 a.m. See Motion for Reconsideration, No. 1:05-cr-00386-ESH (D.D.C. May 22, 2012), ECF No. 619-3, No. 619-4, No. 619–5; Motion to Reconsider at 34-44, No. 1:05-cr-00386-ESH (D.D.C. Feb. 19, 2013), ECF No. 688. Judge Huvelle denied the first motion in an oral bench ruling, stating that even if Jones had a right to have the warrant executed at 6:00 a.m. rather than 4:45 a.m., “the remedy would not be suppression.” Trial Transcript at 11, No. 1:05-cr-00386-ESH (D.D.C. Aug. 10, 2012), ECF No. 670-5. She denied the second motion in a minute order, which stated that the motion was “denied for the reasons stated on the record in open[] court.” Minute Entry, No. 1:05-cr-00386-ESH (D.D.C. Feb. 19, 2013).
In giving those reasons, Judge Huvelle made a specific factual finding that the search occurred after 6:00 a.m. Trial Transcript at 3-4, No. 1:05-cr-00386-ESH (D.D.C. Feb. 19, 2013), ECF No. 780. Here is what she said from the bench:
I credit the testimony of Naugle and the many, many, many other police officers, all of whom got the go-ahead to start at 6 a.m.
I‘m telling you that police do not—they go at the same time. It will undercut the whole purpose of executing a search warrant if half of them go at one time and half go at another time.
The testimony is absolutely consistent. We heard from Naugle that he went in
to the Moore Street house at 6 a.m. or shortly thereafter, consistent with Magistrate Judge Charles Day‘s order. And we find that—listening to the testimony we know from the people who executed the warrant at the co-conspirator‘s house from Detective Webb, he testified; Ashby testified; somebody testified with respect to Demetrius Johnson‘s. Ms. Counts, special agent now retired Counts, testified; Norma Horne testified; and Detective Kirschner [sic] testified. There‘s consistent testimony that they went in at 6:00 when they got the word. Or after 6:00. So I find no basis to credit Ms. Jones‘s testimony. I find the police officers to be totally consistent. I‘ve already ruled five times it‘s legally irrelevant. And I still stand by that. But to the extent I need to make findings of fact, I find that this search was executed after 6 when command center gave the go-ahead to all these officers to take down this conspiracy.
The warrant itself, now reproduced in its entirety as an addendum to the majority opinion, corroborates Judge Huvelle‘s finding. On page two of the warrant, under the heading “DATE AND TIME EXECUTED,” is the notation “10/24/05 6:15 AM.” This statement deserves great weight not only because it was made contemporaneously but also because it was
Under Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), rulings on motions to suppress have preclusive effect in later civil suits. See McClam v. Barry, 697 F.2d 366, 371 n.3 (D.C. Cir. 1983) (“[C]ollateral estoppel should apply in Bivens-type actions as it applies in section 1983 actions.“), overruled on other grounds by Brown v. United States, 742 F.2d 1498 (D.C. Cir. 1984). Jones has already litigated the issue about the timing of the search, and he has lost.
This collateral estoppel issue has already been decided in this circuit as a matter of federal law.2 Evanson v. United States, 84 F.3d 1452 (D.C. Cir. 1995), aff‘g 878 F.Supp. 1 (D.D.C. 1995), was a civil damage action like this case alleging a violation of the Fourth Amendment. The plaintiff in Evanson had been convicted of gun crimes in federal court. He declined to appeal his conviction and then filed a Bivens suit against several of the federal officers who took part in the search. Judge Friedman ruled that the plaintiff was collaterally estopped from contesting the constitutionality of the search because “[a]t the suppression hearing [in federal court
The majority opinion claims that Evanson is distinguishable because the issue there was “necessary” to the judgment. Maj. Op. at 83. In the majority‘s view, Judge Huvelle‘s factual finding about the timing of the search was not necessary to resolve the motion to suppress because it was an alternative ruling. But the traditional rule, and the one most courts of appeals follow, is that “an alternative ground upon which a decision is based should be regarded as ‘necessary’ for purposes of res judicata or collateral estoppel. . . .” Winters v. Lavine, 574 F.2d 46, 67 (2d Cir. 1978); see also Jean Alexander Cosmetics, Inc. v. L‘Oreal USA, Inc., 458 F.3d 244, 254 (3d Cir. 2006); Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396, 1402 (7th Cir. 1987); In re Westgate-California Corp., 642 F.2d 1174, 1176-77 (9th Cir. 1981); Deweese v. Town of Palm Beach, 688 F.2d 731, 734 (11th Cir. 1982); Restatement (First) of Judgments § 68 comment n (1942).
The point of the “necessarily decided” prong of the collateral estoppel inquiry is that a finding should have preclusive effect only when the court making it took “sufficient care in determining [the] issue” and when “appellate review is available to ensure the quality of the initial decision.” 18 Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 4421 (2d ed. 2002). Both of those requirements are met here. Judge Huvelle carefully considered the question—indeed,
Jones never argued that Judge Huvelle‘s factual finding was not necessary to resolving his motion to suppress. But the majority raises the argument anyway, and then decides with no analysis that alternative holdings do not have preclusive effect. I would not make new law based on arguments that the plaintiff never made, especially if that ruling conflicted with the decisions of other circuits.
Nor is this the only issue on which the majority invokes arguments that Jones never made. The opinion also states that collateral estoppel does not apply because Jones had no incentive to appeal Judge Huvelle‘s ruling. Why not? Because even if Jones won on appeal, the remedy “probably would not have been suppression.” Maj. Op. at 82. Notice that this is an assertion about what Jones and his attorney were thinking at the time. And how does the majority gain this insight? Jones never even alleged, let alone argued, in his brief or in his reply brief, that he thought a victory on appeal would not have result-
Ironically, even though it makes new law on two issues that Jones never raised, the majority opinion tries to avoid the preclusive effect of Judge Huvelle‘s factual findings with the astonishing assertion that the defendants have forfeited the argument. Maj. Op. at 82. The assertion is astonishing because the defendants clearly and forcefully made the argument, both here and in the district court. More than that, Jones—in his reply brief—responded to their argument. Here is a sample from the defendants’ brief: “Jones previously litigated . . . the timing of the search in his criminal proceeding. . . . Having already litigated these claims unsuccessfully in the criminal proceeding as part of a motion to suppress, Jones cannot now re-litigate them in a civil proceeding under Bivens or section 1983.” Appellees’ Brief 41. In reply, Jones acknowledged that Judge Huvelle found “that the search occurred within the warrant‘s terms. Tr. of Proceedings Held Feb. 19, 2013, ECF 780 at 4.” Jones Reply
Now to the arguments Jones actually made. In attempting to ward off collateral estoppel, Jones’ only claim is that after he pled guilty, he lacked an “adequate incentive to litigate” or appeal those issues. Appellant Reply Br. 25. For that proposition he cites Haring v. Prosise, 462 U.S. 306 (1983), but the portion of Haring he cites is not a holding. It is instead a summary of the holding of the lower court.4 462 U.S. at 311. (The majority opinion repeats Jones’ mistake. Maj. Op. at 82-83). Additionally, whatever incentive Jones had was obviously enough—he repeatedly litigated the issue before the district court in the criminal case, even after the court told him to stop. Trial Transcript at 5, No. 1:05-cr-00386-ESH (D.D.C. Aug. 10, 2012), ECF No. 670-5 (“[E]very one of [the motions] I ruled on before. I am not going to reverse myself. They are the law of the case.“); Trial Transcript at 3-4, No. 1:05-cr-00386-ESH (Feb. 19, 2013), ECF
Jones also seeks to derive this requirement of an “adequate incentive to litigate” from the broader principle that courts should not estop defendants if doing so would “work a basic unfairness.” Martin v. Dep‘t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007). Bringing “fairness” into the mix does not help him. He has already been involved in four criminal trials and several civil complaints, and he has raised this issue multiple times. He has managed to spin this single, baseless allegation into a large expenditure of judicial and attorney resources. Jones had his day in court, in fact more than a day, and there is nothing unfair in denying him still another.
Jones cites three cases in which he claims criminal defendants were not estopped in “analogous circumstances” because they lacked adequate incentive to litigate or appeal issues decided in a criminal case. Talarico v. Dunlap, 177 Ill.2d 185, 226 Ill.Dec. 222, 685 N.E.2d 325, 332 (1997); Johnson v. Watkins, 101 F.3d 792, 796 (2d Cir. 1996); United States v. Levasseur, 699 F.Supp. 965, 981 (D. Mass. 1988), rev‘d in part on other grounds, 846 F.2d 786 (1st Cir. 1988). The first case did not involve a motion to suppress. Talarico, 177 Ill.2d at 196. And in the other two cases, the defendants could not appeal because they had either been acquitted or granted a mistrial, not because they had pled guilty. Johnson, 101 F.3d at 796; Levasseur, 699 F.Supp. at 971; compare Jenkins v. City of New York, 478 F.3d 76, 91-92 (2d Cir. 2007); Sornberger v. City of Knoxville, 434 F.3d 1006, 1020-23 (7th Cir. 2006); Dixon v. Richer, 922 F.2d 1456, 1459 (10th Cir. 1991). That is a crucial difference. When a defendant is acquitted, neither he nor the government can appeal the decision. See Martinez v. Hooker, 601 Fed.Appx. 644, 648-49 (10th Cir. 2015). In contrast, here Jones had the opportunity to go to trial and appeal if he was convicted; he simply decided he would rather plead guilty.
The short of the matter is that the Fourth Amendment issue regarding the timing of the search is not presented in this case and the majority opinion erred in deciding that issue.5
Notes
But there is now an analogous federal limitations statute—
The majority objects that this is not “a valid reason to ignore the clear text of
Ever since Pearson, this court has developed not a page, but a volume of history following the Supreme Court‘s decision. In these cases, we have almost invariably declined to decide constitutional questions in qualified immunity cases when it was unnecessary to do so. The majority has made no attempt to distinguish the cases embodying our established practice. See Lash v. Lemke, 786 F.3d 1, 5 (D.C. Cir. 2015); Fenwick v. Pudimott, 778 F.3d 133, 137 (D.C. Cir. 2015); Dukore v. District of Columbia, 799 F.3d 1137, 1144 (D.C. Cir. 2015); Fox v. District of Columbia, 794 F.3d 25, 29 (D.C. Cir. 2015); Bamdad v. DEA, 617 Fed.Appx. 7, 8 (D.C. Cir. 2015); Doe v. District of Columbia, 796 F.3d 96, 105 (D.C. Cir. 2015); Mpoy v. Rhee, 758 F.3d 285, 295 (D.C. Cir. 2014); Atherton v. D.C. Office of Mayor, 706 F.3d 512, 515 (D.C. Cir. 2013); Johnson v. District of Columbia, 734 F.3d 1194, 1202 (D.C. Cir. 2013); Taylor v. Reilly, 685 F.3d 1110, 1113 (D.C. Cir. 2012); Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011), as amended (Mar. 29, 2011); Jones v. Horne, 634 F.3d 588, 597, 599 (D.C. Cir. 2011); Ali v. Rumsfeld, 649 F.3d 762, 773 (D.C. Cir. 2011); Rasul v. Myers, 563 F.3d 527, 530 (D.C. Cir. 2009). It is no answer to say that this is a matter within the court‘s discretion. In the words of Chief Justice Marshall, “This is true. But a motion to [the court‘s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F.Cas. 30, 35 (C.C.D. Va. 1807). The nearly uniform practice of this court has established such sound legal principles, and the majority has offered no reason to depart from them.
I repeat that we are deciding this case on a complaint alone. The defendant officers have yet to file their answer to the complaint. As the Supreme Court recognized in Pearson, courts should not proceed to a constitutional question if the answer depends on undeveloped facts. 555 U.S. at 239. Still less should a court decide a constitutional question when developed facts show that the question is not presented. The evidence in the criminal proceedings proved that the search of Jones’ premises eleven years ago complied with the warrant‘s timing requirement. Compare Bradley v. Reno, 749 F.3d 553, 558 (6th Cir. 2014) (“[I]n gauging the reasonableness of an officer‘s acts, a court should of course consider what a trial court thought of them.“).
The answer to the constitutional question here is by no means certain.7 And it is
The majority opinion concludes on this note: “Although well-founded doubt about the veracity of a plaintiff‘s factual allegations might steer us toward constitutional avoidance . . . the Defendants have not submitted contrary evidence nor even filed an answer denying Jones‘s allegations.” Maj. Op. at 87.
I am tempted to place an exclamation point, or maybe two or three, at the end of that quotation. Instead I will insert several here: “well-founded doubt,” “not submitted contrary evidence“!!!! Judge Huvelle pointed out—made a factual finding—that the
PETRO STAR INC., Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION and United States of America, Respondents State of Alaska, et al., Intervenors
No. 15-1009
United States Court of Appeals, District of Columbia Circuit.
Argued March 17, 2016 Decided August 30, 2016
The warrant here was supported by probable cause and so under Rizzi the question is not the simple one about whether a nighttime search pursuant to a daytime warrant violates the Fourth Amendment. The question is rather more involved. One way to frame the question is whether what occurred here was just a ministerial error on the part of the magistrate that the officers could disregard given
I have found no cases directly on point. But there are some analogous federal decisions involving searches pursuant to state court warrants. In these cases the state warrant authorized only a daytime search but the officers executed the warrant at night. United States v. Ravich, 421 F.2d 1196 (2d Cir. 1970) (Friendly, J.), is such a case. Judge Friendly held for the court that the search at night was the equivalent of a harmless error, not a Fourth Amendment violation. Id. at 1202. United States v. Williams, 570 Fed.Appx. 137 (3d Cir. 2014), is a more recent example. There the state court warrant authorized only a daytime search but the officers executed it at night. Judge Scirica, writing for the court, held that the search did not violate the Fourth Amendment. Id. at 141-42. See also United States v. Keene, 915 F.2d 1164, 1168 (8th Cir. 1990) (relying on