Defense counsel wasn’t ineffective for not filing a motion to suppress that use of a flash bang device was excessive force and justified suppression because it wouldn’t be under Herring. Also, defense counsel’s failure to challenge defendant’s arrest wasn’t ineffective assistance because it wouldn’t change the outcome. Williams v. United States, 2019 U.S. Dist. LEXIS 92254 (N.D. Ala. June 3, 2019):
Moreover, even if this Court were to have concluded that the flash bangs that was used constituted excessive force, it does not necessarily follow that the evidence obtained later was due to be suppressed. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but “contains no provision expressly precluding the use of evidence obtained in violation of its commands.” Arizona v. Evans, 514 U.S. 1, 10 (1995). The exclusionary rule, when applicable, forbids the use of improperly obtained evidence at trial. See, e.g., Weeks v. United States, 232 U.S. 383, 398 (1914). The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U.S. 213, 223 (1983). “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009). “[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Id. There are no facts present in this case suggesting that the deployment of flash bangs was excessive force. Moreover, their intended use, to avoid confrontation and injury, cannot rightly be characterized as “deliberate, reckless, or grossly negligent conduct.” Accordingly, Williams’ appellate counsel could not have been ineffective for failing to raise this issue.