S.D.Cal.: Fourth Amendment does not apply to police shooting without apprehension

Fourth Amendment does not apply to a shooting where the person shot by a Border Patrol officer fled into Mexico and died. He was never apprehended by officers. Rodriguez v. United States, 2010 U.S. Dist. LEXIS 9177 (S.D. Cal. February 3, 2010):

Here, after being shot, Rodriguez ran across the border to Mexico. Once in Mexico, he was transported to a Red Cross Hospital in Tijuana, where he later died. Thus, there is no dispute that Rodriguez was never apprehended or in the custody of Defendant Campos or any other U.S. law enforcement officer. Based on these undisputed facts, Defendant Campos did not search or seize Rodriguez, and the Fourth Amendment is not implicated. To rule otherwise would mean that the Fourth Amendment applies whenever someone is shot by federal law enforcement. But the Supreme Court has held that the Fourth Amendment covers “only ‘searches and seizures’….” County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). And the Supreme Court has also clarified that the amendment does not cover attempted seizures. California v. Hodari D., 499 U.S. 621, 626 n.2, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). Because this case did not result in an actual seizure, Plaintiffs’ contention that this Court committed clear error lacks merit.

Defendant’s stop was with reasonable suspicion from an unproved but identified and corroborated CI. Then a drug dog was called in, and the ten minute delay was reasonable. United States v. Smith, 2010 U.S. Dist. LEXIS 9468 (D. Minn. February 4, 2010).*