CA2: Not unreasonable here to use flashbang device in execution of SW

Defense counsel was not ineffective for not challenging the use of a flashbang device in execution of the search warrant at defendant’s home. The Fourth Amendment does not usually require limits on how the warrant should be executed. Here, it was reasonable to use one based on what the executing officers believed. Stegemann v. United States, 2022 U.S. App. LEXIS 31879 (2d Cir. Nov. 18, 2022):

Although Stegemann argues that Quigley should have challenged the search on the ground that the warrant did not authorize the use of a flash-bang device, the Fourth Amendment imposes no such requirement. See [Dalia v. United States, 441 U.S. 238,] at 257 n.19 (noting that the Supreme Court has never held that the Constitution requires officers requesting a warrant to set forth the anticipated means for executing it). Indeed, courts have long recognized that flash-bang devices may be used without prior authorization where, as here, “it was reasonable for the officers to fear for their safety in conducting the search.” United States v. Boulanger, 444 F.3d 76, 84-85 (1st Cir. 2006); see also Terebesi v. Torreso, 764 F.3d 217, 238 (2d Cir. 2014) (explaining that it “is more likely that using a stun grenade will be considered reasonable if the subject of the search or arrest is known to pose a high risk of violent confrontation”). In this case, it was reasonable for law enforcement officers to fear for their safety because they had reason to believe that Stegemann possessed multiple firearms and knew that Stegemann had threatened to kill anyone who tried to enter his home. Since the officers’ use of the flash-bang device was clearly reasonable under the circumstances, Quigley’s strategic decision not to challenge the search on those grounds did not fall below “prevailing professional norms.” Strickland, 466 U.S. at 688.

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