Plaintiff’s arrest and detention and strip searches as a “material witness” when he was to fly round trip to Saudi Arabia stated a claim and the Attorney General who authorized it only had qualified immunity. The AG does not get absolute immunity because this was an investigative function by the government’s public admissions. (Plus, plaintiff was never called as a witness in any case.) Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) (2-1):
According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.
Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd’s claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.
. . .
We hold, therefore, that when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity. 14 We emphasize that our holding here does not rest upon an unadorned assertion of secret, unprovable motive, as the dissent seems to imply. Even before the Supreme Court’s decision in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, it was likely that conclusory allegations of motive, without more, would not have been enough to survive a motion to dismiss. See, e.g., Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (facts pled must be accepted as true, but conclusory allegations need not be). Twombly’s general requirement that “[f]actual allegations must be enough to raise a right to relief above the speculative level,” 550 U.S. 555, applies with equal force to allegations that a prosecutor’s actions served an investigatory function. In this case, however, al-Kidd has averred ample facts to render plausible the allegation of an investigatory function:
. Al-Kidd’s arrest was sought a month after Al-Hussayen was indicted, and more than a year before trial began, temporally distant from the time any testimony would have been needed. See Genzler, 410 F.3d at 639 (“The timing of evidence gathering is a relevant fact in determining how closely connected that conduct is to the official’s core advocacy function ….”). Cf. Betts, 726 F.2d at 81 (arrest warrant issued day of trial); Daniels, 586 F.2d at 68 (same).
. The FBI had previously investigated and interviewed al-Kidd, but had never suggested, let alone demanded, that he appear as a witness. Cf. Betts, 726 F.2d at 80 (subpoena issued; prosecutor called witness day before trial to remind her that trial was to begin the next day); Daniels, 586 F.2d at 65 (plaintiff had already been served one subpoena; second subpoena was misplaced by U.S. Marshal).
. The FBI conducted lengthy interrogations with al-Kidd while in custody, including about matters apparently unrelated to Al-Hussayen’s alleged visa violations. Cf. Genzler, 410 F.3d at 641-43 (nature of questions asked witnesses relevant to whether interview served investigative function).
. Al-Kidd never actually testified for the prosecution in Al-Hussayen’s or any other case, despite his assurances that he would be willing to do so. Cf. Betts, 726 F.2d at 80 (“On Monday morning the trial proceeded and the prosecutor called plaintiff as his first witness.”); Daniels, 586 F.2d at 66 (“Plaintiff subsequently testified as a government witness when Phoenix’s trial resumed.”).
All of these are objective indicia, similar to those we cited in Genzler, 410 F.3d at 641-43, that al-Kidd’s arrest functioned as an investigatory arrest or national security-related preemptive detention, rather than as one to secure a witness’s testimony for trial. Finally:
. Ashcroft’s immediate subordinate, FBI Director Mueller, testified before Congress that al-Kidd’s arrest (rather than, say, the obtaining of the evidence he was supposedly going to provide against Al-Hussayen) constituted a “major success []” in “identifying and dismantling terrorist networks.” Mueller Testimony, supra. Cf. KRL, 384 F.3d at 1114-15 (prosecutor contemporaneously admits on radio program that follow-up search warrant was part of “a stand-alone investigation”).
We conclude that the practice of detaining a material witness in order to investigate him, on the facts alleged by al-Kidd, fulfils an investigative function.
See Law.com: 9th Circuit Blasts Feds for Post-9/11 Detention of ‘Material Witness’.
The search warrant for defendant’s home in a drug murder case lawfully revealed the victim’s belongings in plain view. United States v. Clay, 579 F.3d 919 (8th Cir. 2009)*:
The circumstances of this case are distinguishable from Clark. The officers searching Clay’s residence neither conducted an unbounded exploratory search nor recorded serial numbers of random items in the home seeking incriminating evidence of potential crimes. Furthermore, the incriminating nature of the items seized was immediately apparent to Agent Fehrenbach, who instantly connected the items to Johnson’s homicide. We hold that the seizure of these items during the warrant search did not violate the Fourth Amendment and that the district court properly denied the motion to suppress.
