{"id":2118,"date":"2008-12-24T06:27:28","date_gmt":"2008-05-31T10:04:40","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-05-31T10:04:40","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2118","title":{"rendered":"Stone v. Powell<\/em> bar cannot be avoided by creative Fourteenth Amendment argument of a real Fourth Amendment claim"},"content":{"rendered":"

Habeas petitioner’s attempt to cast manufactured exigent circumstances claim as a Fourteenth Amendment issue rather than a Fourth Amendment issue did not circumvent Stone<\/em>. COA denied. Barber v. Jones, 2008 U.S. App. LEXIS 11526 (10th Cir. May 28, 2008):<\/p>\n

Mr. Barber argues that Stone<\/em><\/a> does not apply to this issue, because the arresting officers’ conduct in “creating an ‘exigent circumstance’ through fraud and de[]ception … was in violation of the 14th Amendment and that is not the same as the 4th Amendment.” Aplt. Br. at 16. A person who asserts that his arrest or physical incarceration was unreasonable or unwarranted, however, is making a Fourth Amendment argument-he cannot use the Fourteenth Amendment as “a fallback to protect interests more specifically addressed by the Fourth Amendment in this context.” Becker v. Kroll<\/em>, 494 F.3d 904, 919 (10th Cir. 2007). Mr. Barber’s claim is a Fourth Amendment claim, and it is barred by Stone<\/em>.<\/p><\/blockquote>\n

District court’s finding that defendant was not an overnight guest with standing was supported by the evidence. United States v. Smith<\/a>, 282 Fed. Appx. 143 (3d Cir. 2008) (unpublished).*<\/p>\n

Defendant failed to show a Franks<\/em> violation. United States v. Hawkins<\/a>, 2008 U.S. App. LEXIS 11439, 2008 FED App. 0292N (6th Cir. May 23, 2008) (unpublished).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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