{"id":1174,"date":"2007-09-17T21:15:40","date_gmt":"2007-07-21T08:49:09","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-07-21T08:49:09","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1174","title":{"rendered":"Albright v. Oliver<\/em>‘s potential expansion of “seizure” rejected in Tenth Circuit (and everywhere else thus far)"},"content":{"rendered":"

Where plaintiff in a \u00a7 1983 case cannot state a claim under the Fourth Amendment, he cannot somehow breathe life into it under the Fourteenth Amendment as a due process issue for a “continuing seizure” of notoriety and incidents of an arrest continuing but where he was not arrested. [A creative argument, but it has to fail.] Becker v. Kroll<\/a>, 494 F.3d 904 (10th Cir. 2007):<\/p>\n

Becker nonetheless argues that we should adopt a broader theory of seizure, based on the Supreme Court’s decision in Albright v. Oliver,<\/em> 510 U.S. 266 (1994). In that case, the Court concluded that the Fourteenth Amendment does not provide a substantive due process right to be free from prosecution without probable cause, but left open the possibility that a plaintiff could bring such a claim under the Fourth Amendment. In a noteworthy concurrence to the Court’s plurality opinion, Justice Ginsburg analyzed Albright’s claim under the Fourth Amendment and urged the Court to adopt a non-custodial concept of “continuing seizure” in order to take into account under the Fourth Amendment the harms incident to the control exercised by the state over a citizen before trial. She argued that seizures for Fourth Amendment purposes include requiring a person to post bond, compelling a person to appear in court, or imposing restrictions on a person’s right to interstate travel, all of which might create reputational, emotional, and financial harms. Id.<\/em> at 278.<\/p>\n

. . .<\/p>\n

We thus agree with the courts that have also declined to accept Justice Ginsburg’s invitation to expand Fourth Amendment liability in cases where the plaintiff has not been arrested or incarcerated. See DiBella v. Borough of Beachwood,<\/em> 407 F.3d 599, 603 (3d Cir. 2005); [citations omitted] (all declining to recognize typical pre-trial release conditions, such as receiving a summons, posting bond, restricting travel, and appearing in court, as a seizure); see also Washington v. County of Rockland,<\/em> 373 F.3d 310, 317 (2d Cir. 2004) (finding no seizure when plaintiffs charged in administrative proceeding and suspended without pay but never physically detained). These cases, moreover, are consistent with those rejecting a “continuing seizure” rationale for post-arrest incarceration, which hold that even when a defendant is in custody, a seizure ends when pretrial incarceration begins. See Riley v. Dorton<\/em>, 115 F.3d 1159, 1164 (4th Cir. 1997); Reed v. City of Chicago<\/em>, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996) (citing Wilkins v. May<\/em>, 872 F.2d 190, 194 (7th Cir. 1989)). <\/p>\n

Even those courts that subscribe to the line of reasoning endorsed by Justice Ginsburg have recognized a seizure only when criminal charges are coupled with another significant restraint on liberty, such as restrictions on travel. [citations omitted] Becker does not argue that she was subject to any of these indicia of non-physical control arising from MFCU’s investigation and prosecution–she apparently never posted bond, was not required to appear in court, and had no specific restrictions on her freedom of movement. Under these circumstances, even if we were inclined to broaden the meaning of seizure beyond our traditional understanding, this case does not present a vehicle for doing so.<\/p>\n

Accordingly, the district court did not err in determining Becker was not seized under the Fourth Amendment.<\/p><\/blockquote>\n

Officers received a tip about drugs being hauled in a load in a tractor trailer, and they found the tractor trailer in the shop at the company’s facility in Odessa, Texas. With the permission of the company, the DEA surveilled the truck and did a dog sniff on the trailer. That gave probable cause for the trailer search under the vehicle exception. United States v. Ibarra<\/a>, 493 F.3d 526 (5th Cir. 2007) (Comment:<\/em> There is no discussion of the immobility of the trailer since the truck was disabled. This is an example of a per se rule for vehicle searches without regard to immobility of the vehicle because of apparent likelihood of mobility in the near future, and that would be reason enough.)*<\/p>\n

Habeas claim for ineffective assistance of counsel for not challenging a search has to be brought after the conviction; bringing it after revocation of probation to undo the underlying conviction is still a waiver. Canady v. Harrison, 2007 U.S. Dist. LEXIS 52239 (M.D. Fla. July 19, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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