[00:00:02] Speaker 00:
Case number 14 is 5257 at L. Anton Jones, appellant, versus Steve Kirchner, DC MPD, detective at L. Mr. Shelley for the appellant, Mr. Simon for the appellee.

[00:00:48] Speaker 03:
Mr. Shelley.

[00:00:53] Speaker 02:
Good morning and may it please the court.

[00:00:55] Speaker 02:
At issue in this appeal is the district court's dismissal of count five of the amended complaint.

[00:01:01] Speaker 02:
Count five has three parts.

[00:01:03] Speaker 02:
associated with it.

[00:01:04] Speaker 02:
First, an allegation that officials failed to knock and announce before searching Mr. Jones' home on Moore Street in Waldorf, Maryland, a Fourth Amendment violation.

[00:01:14] Speaker 02:
The second part is an allegation that the searching officers took 30 to 40 boxes of material during the search, all of which were outside the warrant, another Fourth Amendment violation.

[00:01:25] Speaker 02:
And third, an allegation that the officers conducted the search at night when the warrant expressly limited the search to daytime hours.

[00:01:33] Speaker 02:
The district court erred in dismissing all three aspects of this, and I'd like to go in reverse order.

[00:01:40] Speaker 02:
First, the nighttime search claim.

[00:01:43] Speaker 02:
It's first necessary to emphasize the nature of this claim.

[00:01:46] Speaker 02:
It's not an allegation that all nighttime searches are illegal.

[00:01:51] Speaker 02:
The allegation is that a nighttime search violates the Constitution when the magistrate expressly says it shall occur during the daytime.

[00:01:58] Speaker 03:
Has this circuit ever said that, though?

[00:02:02] Speaker 02:
It has not quite said that.

[00:02:04] Speaker 02:
So in order to deal with the qualified immunity issue, we have to deal with persuasive authority from other circuits and then some of the language in the Youngbee case.

[00:02:15] Speaker 02:
So for instance, in Youngby, the court dealt with a silent search warrant as to the time.

[00:02:23] Speaker 02:
But it was plain, I think, that the court thought if the nighttime search in that case had occurred when only a daytime search had occurred, it would have been illegal.

[00:02:34] Speaker 02:
It's very difficult to read that case and believe that the court there thought that a nighttime search outside the warrant would have been legal.

[00:02:41] Speaker 03:
If the Fourth Circuit has said that there's a circuit split on this issue, then how would a reasonable police officer know that it's definitively unconstitutional for him or her to execute a daytime warrant short night?

[00:03:04] Speaker 02:
So the Fourth Circuit was incorrect in stating that there was a circuit split.

[00:03:08] Speaker 02:
Unfortunately, this part of the Fourth Circuit's decision was sloppy.

[00:03:11] Speaker 02:
If you go back and look at the law, there's a 3rd Circuit case Merritt, another 3rd Circuit case Myers, a 5th Circuit case Vigo, an 8th Circuit case Kelly, a 10th Circuit case O'Rourke, which specifically says there's no qualified immunity in this exact context, and all those come before Yanez-Marquez, which is the 4th Circuit case.

[00:03:31] Speaker 02:
And then what the 4th Circuit does is it cites

[00:03:35] Speaker 02:
Three cases, Schoenheit, Serp, and Burke, saying that these go the other way.

[00:03:41] Speaker 02:
But when you go look at those cases there, they don't say that.

[00:03:44] Speaker 02:
Those other cases actually deal with silent service, warrants that are silent as to time.

[00:03:50] Speaker 02:
Two of them, Schoenheit and Serp.

[00:03:53] Speaker 02:
Burke doesn't even deal with the issue.

[00:03:54] Speaker 02:
It has some dictum in a footnote that's actually helpful, we think, to us.

[00:03:59] Speaker 02:
What the Fourth Circuit did in Llanos Marquez was it misread these other two decisions because the other two decisions didn't even involve situations that had search warrants saying daytime only.

[00:04:09] Speaker 02:
They said day or night.

[00:04:12] Speaker 02:
So it really couldn't set up a circuit split there.

[00:04:14] Speaker 02:
And in fact, there's no court that's really ever said, there's no court anywhere that's ever said a daytime warrant can be executed at night, absent, say, exigent circumstances.

[00:04:24] Speaker 02:
So I don't think the law is at all split or unclear.

[00:04:27] Speaker 03:
If we don't agree with you, you say that we should decide that constitutional question instead of just deciding the case based on qualified immunity.

[00:04:38] Speaker 03:
Correct.

[00:04:39] Speaker 03:
Why should we do that?

[00:04:41] Speaker 02:
Well, to give direction in future cases.

[00:04:43] Speaker 02:
Obviously, Mr. Jones wouldn't be able to succeed on this part of his claim, but it would be helpful to the public at large to get this issue again on the books, because the government is obviously challenging that the law is clearly decided on this issue.

[00:05:00] Speaker 06:
I think you quoted in your brief the passage from Bivens that said the Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant.

[00:05:12] Speaker 02:
Exactly.

[00:05:13] Speaker 06:
Why do you need more than that?

[00:05:15] Speaker 06:
Fourth Amendment, Supreme Court.

[00:05:17] Speaker 02:
You really don't, Your Honor.

[00:05:19] Speaker 02:
And in fact, in Bivens, they cited a 1927 case, Mero, M-A-R-O-O-W, which says the same thing.

[00:05:25] Speaker 02:
And that's the missing link in some of the argument here, in that this isn't just about a nighttime search.

[00:05:31] Speaker 02:
It's about a nighttime search where the warrants said daytime.

[00:05:33] Speaker 06:
And so the terms of the... It doesn't say daytime, but the magistrate struck out... Correct.

[00:05:38] Speaker 06:
...the portion that would have extended the authorization to nighttime.

[00:05:42] Speaker 02:
making it a daytime warrant.

[00:05:44] Speaker 02:
And therefore, it is a difference type of case.

[00:05:46] Speaker 06:
In other words, on its face, there was no ambiguity that this was a daytime only warrant.

[00:05:52] Speaker 06:
So the officers knew that whether they knew it was a Fourth Amendment violation, they knew they were, or should have known if they could read, that they were violating and exceeding the terms of the warrant.

[00:06:02] Speaker 06:
So it's as if they had an invalid or no warrant, isn't it?

[00:06:05] Speaker 02:
Exactly.

[00:06:06] Speaker 06:
Now, isn't it in this very same case in some previous iteration, of which there have been so many,

[00:06:11] Speaker 06:
that the GPS was affixed to the car in, this is the St.

[00:06:16] Speaker 06:
Jones, right?

[00:06:18] Speaker 06:
And the police had, MPD had a warrant to do this in the district for within 10 days, but they did it in Maryland on the 11th day.

[00:06:28] Speaker 06:
And the government did not even maintain that, they just conceded that they had no valid warrant.

[00:06:34] Speaker 06:
They never argued the point.

[00:06:37] Speaker 02:
This is the same.

[00:06:38] Speaker 02:
This is the same.

[00:06:38] Speaker 02:
Seems to me.

[00:06:40] Speaker 02:
It's an issue.

[00:06:40] Speaker 02:
It's not really a nighttime search issue.

[00:06:42] Speaker 02:
It's an issue of what the warrant says, the magistrate deciding to put the language, cross out language in the warrant, and the officers violating it.

[00:06:50] Speaker 06:
The alternative would have been, for instance, the government coming in on the GPS and saying, well, it said the district, but it didn't say not Maryland.

[00:06:58] Speaker 06:
Correct.

[00:06:59] Speaker 06:
Yes.

[00:07:00] Speaker 02:
Yes.

[00:07:00] Speaker 02:
I totally agree with that.

[00:07:02] Speaker 02:
Well, I'm not surprised.

[00:07:04] Speaker 02:
So the combination of the concern for nighttime searches and the adherence that must be made to the warrant itself combines to make for a violation of the Fourth Amendment and given cases like Bivens and the persuasive authority elsewhere that exactly

[00:07:22] Speaker 02:
Like Bivens says that a nighttime search when a warrant indicates day violates the terms of the warrant, we think the law is clearly established everywhere that this type of situation violates the Constitution.

[00:07:34] Speaker 05:
What are the damages for that?

[00:07:39] Speaker 02:
Well, the damages would be the distress that he and his family suffered as a result of the search occurring during the middle of the night when they had to be awakened.

[00:07:48] Speaker 05:
No, it wasn't the middle of the night.

[00:07:50] Speaker 05:
It was what?

[00:07:51] Speaker 05:
4.45 AM.

[00:07:53] Speaker 05:
So there was an hour and 15 minutes.

[00:07:56] Speaker 02:
What is the difference between darkness and light, essentially?

[00:07:59] Speaker 05:
What time of year was this?

[00:08:01] Speaker 05:
October.

[00:08:02] Speaker 02:
And I think we checked on sunrise that day.

[00:08:06] Speaker 02:
It was actually later than World War 45 that day.

[00:08:10] Speaker 02:
So there is a difference between darkness and light.

[00:08:14] Speaker 02:
And the expectation and the concern of the framers, really, for searches when it is dark outside particularly comes into play here, even though the difference was an hour and 15 minutes.

[00:08:25] Speaker 02:
It's a big hour and 15 minutes.

[00:08:28] Speaker 02:
So the other aspects of light.

[00:08:32] Speaker 02:
of count five.

[00:08:33] Speaker 02:
The second going in reverse order, there's the scope claim that 30 to 40 boxes of material were taken that were outside the scope of the warrant.

[00:08:42] Speaker 02:
Judge Leon held that this claim needed to be dismissed because it was implausible under Iqbal and Twombly.

[00:08:49] Speaker 02:
But

[00:08:49] Speaker 02:
I think Judge Leon misunderstood the claim.

[00:08:53] Speaker 02:
The claim was that 30 to 40 boxes of material were taken in total, and the return on the warrant indicates that that was exactly the case.

[00:09:00] Speaker 02:
And Mr. Jones's contention is that all of it was outside the warrant because none of it was in addition of drug dealing.

[00:09:06] Speaker 02:
Is the return in the joint appendix?

[00:09:10] Speaker 02:
It is not, but it is in the summary affirmance materials, right?

[00:09:16] Speaker 02:
It is in the summary affirmance materials.

[00:09:17] Speaker 05:
And I think... And that was left behind in compliance with the federal rules of criminal procedure.

[00:09:26] Speaker 02:
I'm not sure I followed the frame, though.

[00:09:29] Speaker 05:
I thought returns have to be left on the premises.

[00:09:33] Speaker 02:
I believe that's correct, but it was also it was and it was entered on the record as well.

[00:09:40] Speaker 03:
Yeah, I think I have the same confusion.

[00:09:43] Speaker 03:
I think the judge, Judge Randolph knows.

[00:09:46] Speaker 03:
I mean, under the rules after the warrant has been executed, the officers take an inventory of what they are seizing from the home.

[00:09:56] Speaker 03:
And they are required to leave that inventory with the owner of the premises so that they know what the government has taken from their home.

[00:10:06] Speaker 03:
Is your claim that that wasn't done?

[00:10:08] Speaker 03:
No, that's not our claim.

[00:10:10] Speaker 03:
Your claim is that 30 to 40 boxes were taken, but they're outside the scope of the warrant, right?

[00:10:17] Speaker 03:
Correct, correct.

[00:10:18] Speaker 03:
In the scope of the warrant,

[00:10:25] Speaker 03:
appears at this attachment A that's in the appendix, right?

[00:10:33] Speaker 02:
I don't believe that the scope of the warrant is in the appendix.

[00:10:36] Speaker 03:
It's exhibit A2.

[00:10:47] Speaker 03:
Or maybe that wasn't in the appendix.

[00:10:49] Speaker 02:
It's in the summary of firmness materials and also in the district court case of the Jones trial.

[00:10:55] Speaker 03:
Okay, but this document called Attachment A, does that set forth the scope of the war?

[00:11:02] Speaker 03:
Yes, it does.

[00:11:03] Speaker 02:
And Jones's point is that everything here was seeking materials associated with drug trafficking, and nothing that was taken was in addition to drug trafficking.

[00:11:14] Speaker 02:
In fact, when he pled guilty, none of the materials associated with this search ever appeared in the statement of facts associated with the guilty plea.

[00:11:21] Speaker 02:
This isn't necessarily he has to have the winning claim at this point.

[00:11:24] Speaker 02:
He just has to have a plausible claim.

[00:11:26] Speaker 06:
Say that again, none of the materials listed here?

[00:11:28] Speaker 02:
None of the materials that were taken in the 30 to 40 boxes are cited, for instance, in the statement of facts associated with Jones's guilty plea.

[00:11:39] Speaker 02:
And his point is that none of the materials were indicators of drug trafficking.

[00:11:45] Speaker 02:
And as a result, they were outside the scope of the warrant because everything on the attachment to the warrant that could be taken had to be related to drug trafficking.

[00:11:53] Speaker 03:
But I guess what I'm not understanding is that the attachment says, you know, things like books and records or indicia of occupancy and phone bills, et cetera.

[00:12:05] Speaker 03:
in this year, travel, etc.

[00:12:07] Speaker 03:
All those things are things that could be seeds.

[00:12:11] Speaker 03:
Are you saying that the officers if they look in the box, they have to and they see some phone bills in there.

[00:12:20] Speaker 03:
They can't just seize the box.

[00:12:22] Speaker 03:
They have to.

[00:12:23] Speaker 03:
They have to make a determination as to whether those phone bills actually

[00:12:29] Speaker 03:
might prove drug trafficking before they can seize the box?

[00:12:33] Speaker 02:
It's the attachments.

[00:12:34] Speaker 02:
He has to have a plausible claim of this.

[00:12:35] Speaker 02:
And so if the attachment says you may seal books, records, receipts, and any other items evidencing the obtaining, secreting, transfer, or concealment of assets, then those records had to show the concealment of assets for them to take.

[00:12:46] Speaker 03:
But you're not alleging that the boxes did not contain any books or records or receipts?

[00:12:54] Speaker 03:
I guess that's what I'm trying to understand.

[00:12:56] Speaker 02:
Correct.

[00:12:56] Speaker 02:
It's the difference between going in and taking every book you see and every record you see and only taking those that could potentially be within the warrant because they're indicia of the secreting of assets or drug trafficking.

[00:13:09] Speaker 02:
And Jones's point is he has a plausible claim that what they took was general.

[00:13:13] Speaker 02:
It wasn't focused on the specifics of the attachment.

[00:13:16] Speaker 02:
And therefore, he should get his day in court to try to prove that.

[00:13:19] Speaker 02:
And Judge Leon said it wasn't plausible.

[00:13:22] Speaker 02:
that apparently any of the materials that were taken were outside the scope of the warrant.

[00:13:26] Speaker 02:
And under Iqbal and Twombly, Twombly, he just has to show that he has a plausible claim at this point.

[00:13:33] Speaker 06:
So I want to make sure of something.

[00:13:38] Speaker 06:
An inventory should have been, and as far as we know was, left at the premises when the search was over.

[00:13:47] Speaker 05:
Correct.

[00:13:48] Speaker 06:
And was the inventory put before Judge Leon?

[00:13:52] Speaker 02:
It was not.

[00:13:53] Speaker 02:
It was not yet before Judge Leon.

[00:13:56] Speaker 02:
He had only the complaint in front of him.

[00:13:58] Speaker 02:
And the allegation in the complaint was that 30 to 40 boxes were taken.

[00:14:02] Speaker 02:
They were outside the scope of the warrant.

[00:14:04] Speaker 02:
And therefore, the Fourth Amendment was violated.

[00:14:06] Speaker 02:
And he said that was not plausible.

[00:14:08] Speaker 03:
Of what relevance does it have at this stage that there was certainly discovery in the completed criminal prosecution so that Jones would have been well aware of what was in those 30 to 40 boxes because

[00:14:24] Speaker 03:
that would have been provided to him in discovery?

[00:14:27] Speaker 02:
Well, I don't think it's relevant at all at the motion to dismiss stage.

[00:14:31] Speaker 02:
He just has to have a plausible allegation on his face, unless we're going to add an idea that it's not plausible if, in other proceedings, you learn things that might have been relevant to this that weren't used yet in the complaint.

[00:14:42] Speaker 02:
And I'm not aware of a rule like that.

[00:14:44] Speaker 06:
Am I correct in calling the government or, yeah, the government did not answer to that?

[00:14:49] Speaker 02:
Did not answer yet, no.

[00:14:50] Speaker 02:
It was just a motion to dismiss.

[00:14:53] Speaker 02:
I'd like to just turn for a second to the first part, which is the not-going-to-announce claim.

[00:14:57] Speaker 02:
And before I like to reserve any time I have for rebuttal, but I did want to note that there's a statute of limitations issue that's raised there that we think is not properly before the court.

[00:15:06] Speaker 02:
But if the court was to consider that, one of the issues is should D.C.'

[00:15:10] Speaker 02:
's tolling rule apply or Maryland's non-tolling rule apply.

[00:15:14] Speaker 02:
And then further,

[00:15:15] Speaker 02:
In furtherance of the point that the D.C.

[00:15:18] Speaker 05:
tolling rule should apply, I wanted to bring to this point the ten... It's not properly before us because it was mentioned only in the reply to the motion to dismiss.

[00:15:31] Speaker 02:
Correct.

[00:15:31] Speaker 02:
And not raised and not addressed by Judge Leon.

[00:15:34] Speaker 05:
If we remand, then the government answers the complaint and they can raise it.

[00:15:38] Speaker 02:
Correct.

[00:15:39] Speaker 02:
Correct.

[00:15:41] Speaker 02:
And that's the way it should be, because it's actually a very complicated issue, both legally and factually.

[00:15:48] Speaker 02:
But the point I wanted to make was that the tolling issue is controlled by DC law under 42 USC section 1988, and also under this court's forestall decision, 551 F second 411.

[00:16:04] Speaker 02:
So we seek a reversal of Judge Leon's decision.

[00:16:06] Speaker 05:
When did that claim, when did the not been announced claim approve?

[00:16:10] Speaker 02:
It accrued on the day it occurred, which is October 24, 2005.

[00:16:20] Speaker 02:
Under DC law, which you have to borrow here, under the DC Court of Appeals,

[00:16:28] Speaker 02:
that they hold that the tolling rule, if events just immediately before an arrest are what you're challenging, that the tolling comes in.

[00:16:38] Speaker 05:
But the statute that doesn't talk about arrest, it says that it's told, if the claim accrued while the individual was imprisoned,

[00:16:54] Speaker 02:
But when did he go to prison?

[00:16:56] Speaker 02:
Well, he was incarcerated immediately.

[00:16:57] Speaker 02:
He was handcuffed, taken, and he's never been out.

[00:16:59] Speaker 05:
No, that's not prison.

[00:17:01] Speaker 05:
He was in custody, but that's not what the statute says.

[00:17:03] Speaker 05:
It says in prison.

[00:17:05] Speaker 05:
So he was arrested after the failure to knock and announce, right?

[00:17:11] Speaker 05:
And then he was taken to the station house, I suppose.

[00:17:15] Speaker 05:
Correct.

[00:17:16] Speaker 05:
And in a cruiser or something?

[00:17:21] Speaker 05:
And then was there a jail cell there?

[00:17:24] Speaker 02:
I don't know, but this is exactly what happened in the Tinker case, and the D.C.

[00:17:28] Speaker 02:
Court of Appeals, which is interpreting that statute, and it's the common law of that statute, held that the statute was, the statute of limitations was told, because... Well, it's not common law, I mean, because Wallace, if we follow Wallace,

[00:17:44] Speaker 05:
as long as he's not imprisoned illegally unless he didn't have a process.

[00:17:52] Speaker 02:
Well, Wallace v. Cato doesn't really answer this question because both the foreign state and the state of the conduct were the same.

[00:17:58] Speaker 02:
Here, the conduct is in Maryland.

[00:17:59] Speaker 02:
The foreign state is DC.

[00:18:01] Speaker 02:
And it raises a different issue.

[00:18:02] Speaker 02:
And Wallace actually cited another case in stating that you look to where the claim arose that is a foreign state case.

[00:18:08] Speaker 02:
And it's always been interpreted as a foreign state.

[00:18:10] Speaker 05:
I think I know the answer to this, but what they heard from you, why is it that the statute of limitations creates an issue only with respect to the knock and the nails?

[00:18:20] Speaker 02:
It doesn't in the sense that the tolling occurred for all the claims in our perspective, but they've only raised, the only reason we've noted here is because they raised it, only raised it with respect to the knock-and-announcement.

[00:18:30] Speaker 02:
I think that's because HEC comes into play, the other two claims were dismissed once before on the basis of HEC, and as a result, that's told because of HEC.

[00:18:41] Speaker 05:
But knock and announce, number one, wasn't part of the original complaint that ultimately was dismissed.

[00:18:50] Speaker 05:
But heck.

[00:18:52] Speaker 05:
Yeah, heck doesn't apply to knock and announce because there's no suppression.

[00:18:58] Speaker 05:
That's what I thought was the answer.

[00:19:01] Speaker 02:
Well, we would agree that HEC doesn't protect this one.

[00:19:07] Speaker 05:
So it can affect the judgment of conviction because they wouldn't suppress anyone.

[00:19:12] Speaker 02:
Correct.

[00:19:12] Speaker 02:
And the government's only raised the statute of limitations with respect to the knock-and-announcement result.

[00:19:16] Speaker 02:
So I'm well over my time.

[00:19:18] Speaker 02:
So we again ask that Judge Leon's decision on all three parts of this claim be reversed.

[00:19:24] Speaker 03:
All right.

[00:19:24] Speaker 03:
Thank you.

[00:19:24] Speaker 03:
We'll give you some time in rebuttal.

[00:19:39] Speaker 01:
May I please the court?

[00:19:40] Speaker 01:
I'd like to first address the time of entry claim.

[00:19:44] Speaker 01:
The court may recall that the warrant here is a warrant issued out of the United States District Court of Maryland.

[00:19:49] Speaker 01:
The search occurred at a premises in Maryland.

[00:19:53] Speaker 05:
So the question... What's a DC police officer doing executing a search warrant in Maryland?

[00:19:59] Speaker 01:
Well, these are FBI agents and MPD officers who are part of a task force with the FBI.

[00:20:07] Speaker 01:
and the investigation that they were conducting encompassed, um, of Mr Jones and encompassed the property.

[00:20:15] Speaker 05:
The FBI can give a DC police officer authority to execute a war outside of the officer's jurisdiction.

[00:20:22] Speaker 01:
Well, the FBI agents were

[00:20:25] Speaker 01:
also executing the warrant.

[00:20:27] Speaker 01:
So I don't believe the appellant has raised any issue as to... No, I just, I was curious why... Go ahead, go ahead.

[00:20:34] Speaker 01:
So the question is whether there was clearly established law in the Fourth Circuit in 2005 whether an officer's failure to comply with a time restriction in a warrant is a Fourth Amendment violation.

[00:20:48] Speaker 01:
And the Yanez-Marquez case, which was issued in 2015, answers that question.

[00:20:55] Speaker 01:
Yanez-Marquez reviewed its own case authority, as well as authority from the Second and Sixth Circuit.

[00:21:01] Speaker 03:
Why is the Fourth Circuit the relevant circuit?

[00:21:04] Speaker 01:
Well, I would submit the Fourth Circuit's the relevant circuit, because that's the warrant was issued.

[00:21:09] Speaker 03:
I understand you want it to be the relevant circuit, because there's a case that says that it's not settled, but that's not good enough.

[00:21:18] Speaker 01:
Well, no, Your Honor.

[00:21:18] Speaker 01:
The warrant was issued out of the District of Maryland, and it was executed in Maryland.

[00:21:24] Speaker 01:
But be that as it may, even if the court were to apply DC Circuit law,

[00:21:29] Speaker 01:
There was not a consensus among the circuits establishing a clearly established right that a failure to comply with a time restriction was a Fourth Amendment violation.

[00:21:40] Speaker 01:
Indeed, in this circuit, in the US First Anderson case, which was cited by Judge Huvel, who oversaw the criminal proceeding and actually heard a motion to suppress, based on the time of entry, actually heard this very same issue,

[00:21:57] Speaker 01:
She, following the US v. Anderson case, concluded that the favor to comply with the time restriction was a non-constitutional violation that did not require suppression.

[00:22:12] Speaker 03:
Why do we need anything more than Bivens?

[00:22:14] Speaker 03:
I mean, Bivens says that the Fourth Amendment requires that you comply with the terms of the warrant.

[00:22:20] Speaker 03:
The terms of the warrant were clear.

[00:22:22] Speaker 03:
The allegation in the complaint, which we have to take as true at this point, is that they didn't comply with the term of the warrant.

[00:22:30] Speaker 01:
Well, because Bivens was not addressing a time restriction in a warrant.

[00:22:33] Speaker 01:
Bivens was a case where the plaintiff alleged that they were arrested without a warrant and without probable cause.

[00:22:40] Speaker 01:
What plaintiffs are referring to is a footnote in Bivens that's citing to a 1927 decision that is talking about the requirement in a warrant to identify the place to be searched and the items to be seized.

[00:22:52] Speaker 01:
So that statement in dicta in Bivens is stating that you cannot exceed the scope of the warrant with respect to the items to be seized and the place to be searched, which are part of the Fourth Amendment.

[00:23:04] Speaker 05:
This Bivens was decided on a complaint, period.

[00:23:08] Speaker 01:
There was no evidence.

[00:23:11] Speaker 01:
But the suggestion here is that Bivens somehow resolved, clearly resolved the question here, which is whether compliance with a time restriction in a warrant

[00:23:24] Speaker 01:
fair to comply with the time restriction or warrant violates the Fourth Amendment and Bivens did not hold that.

[00:23:29] Speaker 01:
This is a dicta assertion in a footnote in Bivens that's talking about a Fourth Amendment requirement, items to be seized and the place to be searched.

[00:23:39] Speaker 01:
So Bivens does not establish

[00:23:42] Speaker 01:
clearly establish law regarding the issue that's presented here, which is whether a time restriction is a violation of the Fourth Amendment.

[00:23:50] Speaker 01:
Indeed, the Fourth Amendment doesn't refer to a time restriction as one of the

[00:23:57] Speaker 01:
requirements.

[00:23:58] Speaker 01:
That is a restriction that's been established by Rule 41.

[00:24:02] Speaker 01:
And in U.S.

[00:24:02] Speaker 01:
v. Anderson, the D.C.

[00:24:05] Speaker 01:
Circuit case that Judge Yuvalber relied on, the court talked about how Rule 41 creates technical requirements that go beyond the very limited constitutional requirements.

[00:24:16] Speaker 03:
But, I mean, the statute that this warrant was issued was Section, what is it, 879?

[00:24:22] Speaker 01:
879 would have applied to this statute also, correct?

[00:24:25] Speaker 03:
And the statute says that, you know, if the magistrate or the judge finds that it's appropriate, it can be done at any time, but here the magistrate didn't find that, right?

[00:24:39] Speaker 01:
Well, that actually, as interpreted by the U.S.

[00:24:42] Speaker 01:
v. Rizzi, which is also a Fourth Circuit decision,

[00:24:47] Speaker 01:
and Gooding, the United States Supreme Court, 879 says all the magistrate needs to do is find probable cause.

[00:24:54] Speaker 01:
Upon a finding of probable cause, the warrant can be issued day or night.

[00:24:58] Speaker 01:
The magistrate doesn't have the authority, actually, under 879, to restrict the time.

[00:25:05] Speaker 03:
But our point is... You're saying that the magistrate can't limit the warrant to daytime?

[00:25:11] Speaker 03:
Under section... That this was some sort of ultra-virus act, him striking the language out?

[00:25:16] Speaker 01:
Under Section 879, if you look at the Gooding decision and the Rizzi decision, we would submit that the magistrate doesn't have authority upon finding probable cause for the search itself, which is not disputed here.

[00:25:27] Speaker 01:
The magistrate did not have authority to restrict the search to the daytime, but the court doesn't even have to go there because under the Rule 41 case law,

[00:25:40] Speaker 01:
As the Yannis-Marquez case establishes, it was not clearly established law in 2005 that a time restriction implicates the Fourth Amendment.

[00:25:51] Speaker 01:
And I would also submit that there was a case.

[00:25:54] Speaker 05:
Let me ask you.

[00:25:55] Speaker 05:
Suppose you're right.

[00:25:58] Speaker 05:
violation of a time restriction in a warrant is not a violation of the Fourth Amendment.

[00:26:04] Speaker 05:
But that only begins the inquiry, doesn't it?

[00:26:06] Speaker 05:
Because the next question would be whether the plaintiff in this case can sue for damages for a violation of the terms of a warrant, regardless whether it's Fourth Amendment or not.

[00:26:20] Speaker 01:
I would agree that the plankton has not suffered, has not establishedly suffered any prejudice by virtue of the search at 445 A.M.

[00:26:30] Speaker 05:
Do you understand what I'm saying?

[00:26:34] Speaker 05:
Put aside the Fourth Amendment.

[00:26:35] Speaker 05:
The warrant was executed against his house, and it was executed in violation of the terms of the warrant.

[00:26:44] Speaker 05:
So that raises the question whether – forget about the Fourth Amendment – whether he has the right to damages for that violation.

[00:26:53] Speaker 05:
And what's your answer to that?

[00:26:56] Speaker 01:
I don't, it's not an issue that we've raised.

[00:26:59] Speaker 01:
I don't know that they've adequately, that they've identified the nature of the damages in the complaint.

[00:27:06] Speaker 01:
But I would also just note that if the court were to look at the case authority from this time period, the 2005 time period, the court will see, and you can look at the U.S.

[00:27:17] Speaker 01:
v. Anderson case, which relies on some of the same decisions, U.S.

[00:27:20] Speaker 01:
v. Serk, for instance,

[00:27:22] Speaker 01:
And you can look at the Yanis Marquez case, including the 2009 Fourth Circuit decision, U.S.

[00:27:29] Speaker 01:
v. Davis, which has a very similar fact pattern, actually.

[00:27:34] Speaker 01:
In U.S.

[00:27:34] Speaker 01:
v. Davis, the allegation in the motion to suppress was that the search was done at 5 a.m.

[00:27:39] Speaker 01:
on a daytime warrant.

[00:27:42] Speaker 01:
And the court very clearly said that is a non-constitutional violation.

[00:27:48] Speaker 01:
Now, an individual in that context may have the right to move to suppress.

[00:27:55] Speaker 01:
And there's a whole body of law during that time period that addresses when suppression is appropriate.

[00:28:03] Speaker 01:
Not appropriate.

[00:28:04] Speaker 01:
It's not based on this being a Fourth Amendment violation.

[00:28:07] Speaker 01:
It's just based on it being a violation of the procedure of Rule 41.

[00:28:10] Speaker 01:
They consider such things as whether the officers acted in bad faith, whether there was prejudice in connection with the search.

[00:28:17] Speaker 01:
Judge Huvel, and I would submit there's not even a consensus among the circuits on that question.

[00:28:26] Speaker 01:
And Judge Huvel relying on US First Anderson, when presented with that very motion,

[00:28:30] Speaker 01:
found this to be a technical violation of the warrant, found the warrant to be valid, did not suppress.

[00:28:37] Speaker 01:
So what Mr. Jones is trying to do is relitigate, essentially, an issue that was already resolved in the criminal proceeding.

[00:28:44] Speaker 03:
Let me see if I can understand the government's position, though, with respect to the rule and the statute.

[00:28:52] Speaker 03:
Are you saying that if Congress passed the statute, enacted the statute, that said that

[00:29:00] Speaker 03:
that you can execute a warrant on, make an absurd example, reasonable suspicion.

[00:29:15] Speaker 03:
Because Congress passed that statute, as long as the officers complied with that statute, that wouldn't violate the Fourth Amendment.

[00:29:25] Speaker 03:
You're not taking that position, right?

[00:29:27] Speaker 01:
No, because the Fourth Amendment specifically says upon probable cause.

[00:29:30] Speaker 03:
Okay.

[00:29:31] Speaker 03:
So if Congress doesn't explicitly do something in violation of the Fourth Amendment as stated,

[00:29:39] Speaker 03:
and just says, well, you can execute a warrant any time day or night.

[00:29:46] Speaker 03:
That settles the matter, or is it for the courts to determine whether certain nighttime executions of warrants violate the Fourth Amendment?

[00:29:55] Speaker 01:
Well, I would submit, Your Honor, that the Supreme Court in the Gooding case already has interpreted Section 879, already considered the argument which was made there, which was that 879 required a finding of probable cause

[00:30:10] Speaker 01:
for a nighttime search and already has resolved that question and said no, Section 879 requires permits execution of a warrant day or night upon once the magistrate has found probable cause for the search.

[00:30:23] Speaker 03:
That only settles the question of what the statute requires, right?

[00:30:28] Speaker 03:
It doesn't settle the matter of what the Fourth Amendment requires.

[00:30:32] Speaker 01:
Well, but in Young Bee, this court itself said that the Fourth Amendment does not prescribe nighttime searches.

[00:30:41] Speaker 01:
The Fourth Amendment speaks of a requirement of a neutral magistrate, probable cause, and that the items to be seized and the place to be searched be identified.

[00:30:50] Speaker 01:
There's only three requirements to the Fourth Amendment.

[00:30:53] Speaker 01:
Now, in 2005,

[00:30:57] Speaker 01:
It was not clearly established.

[00:30:59] Speaker 01:
And so the time restriction that we're talking about here was an additional protection that Congress added in Rule 41.

[00:31:06] Speaker 01:
And then Congress, recognizing that drug warrants involve different considerations, established Section 879, which does not have

[00:31:18] Speaker 01:
the same time restrictions as Rule 41.

[00:31:21] Speaker 01:
But be that as it may, pulling back from the issue a bit, what we're looking at here on qualified immunity is whether it was clearly established law in 2005 that the failure to comply with a time restriction violated the Fourth Amendment.

[00:31:37] Speaker 01:
And how a reasonable officer could believe it was clearly established law when the Fourth Circuit

[00:31:44] Speaker 01:
said there's a circuit split on the issue.

[00:31:46] Speaker 01:
When the First Circuit, as late as 2009, said the federal to comply with the time restriction was a non-constitutional violation, when a district court judge, Judge Hovell, considering this very same issue, denied repeated motions to suppress

[00:32:02] Speaker 01:
on the basis that the federal compartment time restriction was a technical violation of Rule 41 that did not warrant suppression.

[00:32:10] Speaker 03:
And suppose we agree with you on that issue that's not clearly established.

[00:32:15] Speaker 03:
Why shouldn't we decide the constitutional issue and hold that it is a Fourth Amendment violation to execute a daytime warrant at night?

[00:32:27] Speaker 01:
Well, in the Pearson case, the court has the option of choosing which of the two prongs to decide first.

[00:32:34] Speaker 01:
Ultimately, you would need to reach the clearly established issue to reverse judge, to address Judge Leon's decision.

[00:32:44] Speaker 01:
But what we would submit, again, going back to the beginning of my argument, that this is really a Fourth Circuit question, because it was a Fourth Circuit warrant, and the search court occurred within the Fourth Circuit.

[00:32:53] Speaker 01:
So I don't know that the DC Circuit should be opining

[00:32:58] Speaker 01:
on a constitutional question that pertained to assertion of the Fourth Circuit when the court can decide this issue just based on the clearly established question.

[00:33:10] Speaker 01:
And there are no further questions on that.

[00:33:12] Speaker 06:
I have one.

[00:33:13] Speaker 06:
You've twice alluded to Judge Huvel's saying that she wouldn't suppress on this basis.

[00:33:20] Speaker 06:
I'm not sure you've

[00:33:21] Speaker 06:
Why that or whether you're advancing that is a reason for saying that the for that reason alone that the plaintiff would not be entitled to damages.

[00:33:34] Speaker 06:
It's a different remedy.

[00:33:36] Speaker 06:
It's a different context.

[00:33:38] Speaker 01:
I think what I'm saying, Your Honor, is that there's been a suggestion that the warrant somehow was invalid, per se, or that the search was invalid, per se, because it allegedly occurred outside the time restriction.

[00:33:51] Speaker 06:
And my point is- That suggestion is with respect both to the Fourth Amendment and to the warrant itself.

[00:34:02] Speaker 01:
And so the question would be then, was it clearly established in 2005 that exceeding the time restriction on a warrant would render the search a failure?

[00:34:12] Speaker 06:
That goes to the Fourth Amendment question, right?

[00:34:15] Speaker 06:
That goes to the Fourth Amendment.

[00:34:17] Speaker 06:
The clearly established standard is relevant to the liability under the Fourth Amendment.

[00:34:22] Speaker 06:
Yes.

[00:34:24] Speaker 06:
I think Judge Randolph raised this question.

[00:34:25] Speaker 06:
What about liability apart from the Fourth Amendment?

[00:34:29] Speaker 01:
Well, the only issue here is a Fourth Amendment Bivens Plan.

[00:34:33] Speaker 01:
So to the extent there is no Fourth Amendment Bivens Plan, there's no liability.

[00:34:37] Speaker 06:
And my point on the judge's- Actually, so there's no claim based solely on the facial violation of the warrant.

[00:34:44] Speaker 01:
That's my understanding of the plan correct.

[00:34:46] Speaker 01:
And I would submit that the warrant has already been deemed valid.

[00:34:50] Speaker 01:
The search has already been deemed valid by the district court.

[00:34:53] Speaker 06:
Well, valid or just not worthy of suppression?

[00:34:55] Speaker 01:
Well, if it was per se invalid,

[00:34:58] Speaker 01:
then the court would not have found it to be a non-constitutional violation.

[00:35:06] Speaker 06:
This is all ultimately resolved by a plea.

[00:35:09] Speaker 06:
So there's no test of that ruling by the district court.

[00:35:12] Speaker 01:
Well, it was never appealed, and he waived the appeal by pleading.

[00:35:14] Speaker 05:
So therefore, it's been adjudicated in... What do you do with the Jones case in the Supreme Court and the way that that was handled by the Fourth Circuit and where it was?

[00:35:25] Speaker 01:
The Jones case in the Supreme Court dealt with the GPS search.

[00:35:29] Speaker 01:
No, no, no, not that one.

[00:35:30] Speaker 05:
It's 357 U.S.

[00:35:31] Speaker 05:
496.

[00:35:33] Speaker 05:
Are you familiar with it?

[00:35:37] Speaker 01:
If the court could provide a little more information.

[00:35:40] Speaker 05:
I'm sorry?

[00:35:40] Speaker 05:
The Attorney General of the United States conceded, according to the Fourth Circuit, and the Supreme Court agreed that, and I'm reading from the Fourth Circuit, the Marquez case,

[00:35:55] Speaker 05:
The Supreme Court accepted the attorney general's concession that the nighttime search under collar of a daytime warrant violated the Fourth Amendment.

[00:36:05] Speaker 01:
Yes.

[00:36:05] Speaker 01:
Thank you, Your Honor.

[00:36:06] Speaker 01:
I know what you're referring to.

[00:36:07] Speaker 01:
Yes.

[00:36:08] Speaker 01:
So that was a 1950-so decision.

[00:36:11] Speaker 01:
I believe it predated the Section 899 statute.

[00:36:15] Speaker 01:
And I'm not familiar with the state of the law in the 1950s, so I can't

[00:36:22] Speaker 01:
further opine on the basis for that assertion, but I do know that the government in this criminal proceeding in this case, underlying this case, asserted that the warrant was valid, and that Judge Juvelle agreed, and that the case law that has been, that existed from the 1980s forward up until the 2015 Agnes Marquez case was very clear that

[00:36:51] Speaker 01:
Rule 41 has a constitutional aspect to it, the three items identified in the Fourth Amendment, and non-constitutional aspects to it.

[00:36:59] Speaker 05:
Even though the Attorney General conceded to the Supreme Court, otherwise.

[00:37:03] Speaker 01:
But that was in the 1950s before, I don't know when Rule 41 was enacted, but I know that 879, I believe, was enacted.

[00:37:10] Speaker 03:
But I think Judge Randolph just asked my question much better than I did.

[00:37:16] Speaker 03:
Which is, what does the statute have to do with whether it's constitutional or not?

[00:37:21] Speaker 03:
I mean, Congress can pass whatever it wants.

[00:37:23] Speaker 01:
That doesn't make something constitutional that's not... But whether it's clearly established, if the Congress has passed... I mean, we're all... I'm just asserting, again, the law was certainly not clearly established in 2005.

[00:37:38] Speaker 01:
that officers would have noticed that failure to comply with the time restriction.

[00:37:46] Speaker 03:
Okay, we're beyond that, though.

[00:37:48] Speaker 03:
I mean, we were asking you questions, or at least I was asking you questions about why shouldn't we hold that it violates the Fourth Amendment?

[00:37:57] Speaker 03:
If the Attorney General conceded it, isn't that a pretty good reason to hold that?

[00:38:04] Speaker 01:
Again, I would submit that this Court would be opining on law regarding searches that were conducted within the Fourth Circuit, but even if the Court were to reach that holding in 2016, it would not establish liability under Bivens for these officers in a search that was conducted in 2005.

[00:38:24] Speaker 05:
It seems odd, though, that the Attorney General in 1958

[00:38:30] Speaker 05:
concedes that execution of a daytime warrant at night violates the Fourth Amendment.

[00:38:38] Speaker 05:
So it was clearly established, at least to the Attorney General, and that's a confession of error that was made in the Supreme Court of the United States.

[00:38:45] Speaker 05:
So it was clearly established in 1958, but not

[00:38:49] Speaker 01:
I'm not sure that the concession was as affirmative as you stated.

[00:38:55] Speaker 01:
I think they conceded the issue.

[00:38:57] Speaker 01:
They did not challenge that issue in the Supreme Court.

[00:39:01] Speaker 01:
I don't know that that is a concession.

[00:39:04] Speaker 01:
You may be right.

[00:39:05] Speaker 05:
I'm just relying on the Fourth Circuit's description.

[00:39:12] Speaker 01:
The Fourth Circuit went beyond that case and started and discussed its own case law and case law from other circuits to find the circuit split.

[00:39:18] Speaker 01:
So to reconcile all of that together, I think it's fair to say that it was not clearly established in 2005.

[00:39:23] Speaker 01:
I would say in the Fourth Circuit or in this circuit.

[00:39:27] Speaker 01:
Again, and I would cite the U.S.

[00:39:29] Speaker 01:
v. Anderson decision, which relied on, among other things, U.S.

[00:39:32] Speaker 01:
v. Serp, which is one of the cases the Fourth Circuit relied on in observing a circuit split.

[00:39:37] Speaker 06:
Each time this comes up, you slide over to clearly established.

[00:39:42] Speaker 06:
And of course, we can approach either aspect of this first.

[00:39:49] Speaker 06:
We could take clearly established or violation at all.

[00:39:53] Speaker 06:
And with respect to whether it's a violation of Fourth Amendment at all, I gather all you've said is, well, it's a Fourth Circuit case, so we shouldn't get into that.

[00:40:05] Speaker 01:
Well, I think that there's a very reasonable question as to whether it's a Fourth Amendment violation.

[00:40:10] Speaker 01:
Now, the Fourth Circuit, as of 2015... I understand that.

[00:40:12] Speaker 06:
Okay.

[00:40:13] Speaker 06:
Right.

[00:40:13] Speaker 06:
All right.

[00:40:14] Speaker 06:
So if we take that up first, what is your position?

[00:40:19] Speaker 01:
I would assert that there are three requirements in the Fourth Amendment.

[00:40:25] Speaker 01:
not of which were violated here.

[00:40:28] Speaker 01:
Therefore, that is not a fourth, that the time restriction is not a fourth member requirement, particularly in the drug warrant context, which is governed by section 879.

[00:40:38] Speaker 06:
Well, please, you should have stopped it before particularly.

[00:40:41] Speaker 06:
I think we've covered that ground.

[00:40:44] Speaker 06:
the statute can't really alter the scope of the Fourth Amendment.

[00:40:49] Speaker 01:
The only reason I raise it, Your Honor, is because I think that the genesis of the time restriction comes from Rule 41.

[00:40:54] Speaker 01:
That's the genesis of all the argument about the constitutionality of the search, because it's not in the Fourth Amendment itself.

[00:41:01] Speaker 03:
So is your answer the same, that there's no Fourth Amendment violation if the warrant's good for 10 days and they wait six months to execute it?

[00:41:11] Speaker 01:
That's not the issue for the court, so I'm not prepared to take a position.

[00:41:15] Speaker 06:
There was a concession in Jones to the effect that the government did not contest that.

[00:41:22] Speaker 06:
There was the eleventh day, one day after the expiration of the warrant.

[00:41:27] Speaker 06:
The department did not come in here and say ten means eleven, day means night.

[00:41:33] Speaker 01:
I'm not taking a position on that only because that's not an issue I'm prepared to discuss because I was focusing only on the time restriction of the warrant.

[00:41:40] Speaker 01:
I'd like to address, if I could briefly, I know I'm, I believe I've exceeded my time drive, if I could have a few more moments.

[00:41:49] Speaker 01:
Go ahead.

[00:41:50] Speaker 01:
Again, going in reverse order here.

[00:41:52] Speaker 01:
In terms of the inventory, the inventory is part of the district court proceeding, docket entry number 619-7.

[00:42:00] Speaker 01:
And the items identified on the inventory are consistent with the description of the items that may be seized on the attachment to the warrant.

[00:42:19] Speaker 01:
is diminishing.

[00:42:21] Speaker 05:
When you said district court, do you mean Judge Leon or?

[00:42:24] Speaker 01:
Excuse me, I apologize, Your Honor.

[00:42:26] Speaker 01:
The criminal proceeding.

[00:42:27] Speaker 01:
619-7 was the criminal proceeding.

[00:42:31] Speaker 06:
Now you're back with Judge Revelle?

[00:42:34] Speaker 01:
Judge Revelle, presided over.

[00:42:35] Speaker 06:
So ordinarily, the chain of authority runs from the Supreme Court to us, to the district court, not from the district court to us.

[00:42:42] Speaker 01:
Understood, Your Honor.

[00:42:42] Speaker 01:
I was just making the point that a reasonable officer is not

[00:42:50] Speaker 01:
in a position to... I was just making a point.

[00:42:54] Speaker 06:
Actually, frankly, in the past when we've dealt with these, insofar as I know, when I've dealt with these questions that have been clearly established, it's a question about the decisions of the circuits, if there's no Supreme Court authority.

[00:43:06] Speaker 06:
Absolutely.

[00:43:07] Speaker 06:
Not about district courts in circuits that haven't answered the question.

[00:43:11] Speaker 01:
Understood, Your Honor.

[00:43:12] Speaker 01:
And I just say that Judge Yvella did cite a D.C.

[00:43:15] Speaker 01:
Circuit case for her decision, and I think that is a presidential

[00:43:20] Speaker 01:
a decision for this court, and also that we do raise the issue about whether appellant can re-litigate an issue that was already adjudicated by the district court and not appealed in the criminal context.

[00:43:31] Speaker 01:
But going to the pleading obligation under IGBAL, it is a heightened pleading obligation.

[00:43:38] Speaker 01:
And a single assertion that 30 or 40 boxes were taken that were not listed on the attachment to the warrant does not plead a plausible claim under the IGBAL standard.

[00:43:49] Speaker 01:
And I would refer this court to its decision in Atherton, which we cite in our papers, where the court discusses Iqbal and finds that a claim by someone who was removed from a grand jury, that they were removed for discriminatory reasons, that the court dismissed that as being a not plausible claim.

[00:44:17] Speaker 03:
Let's suppose he had played that the police removed every piece of property from my home.

[00:44:31] Speaker 03:
Would you still be making the same argument?

[00:44:36] Speaker 01:
I would.

[00:44:38] Speaker 01:
If he also pled that the warrant did not authorize the removal of all the property from the home, then he would have come much closer and possibly have pled a plausible claim.

[00:44:49] Speaker 01:
The problem is there's nothing in the complaint that pleads what the scope of the warrant was.

[00:44:54] Speaker 01:
There's nothing in the complaint that pleads what was taken.

[00:44:56] Speaker 01:
And all he has pled is a conclusory assertion that items received that were not listed on the attachment warrant is actually how it's pled in the complaint.

[00:45:07] Speaker 01:
And we would submit that that falls far short of the pleading standard in the Iqbal decision in Twombly.

[00:45:14] Speaker 01:
Particularly when Jones has access to the inventory and could have pled, if you believe certain items could have been discovered before and could have pled that with particularity and failed to do so.

[00:45:31] Speaker 01:
Very briefly, I discussed the statute of limitations issue.

[00:45:35] Speaker 01:
In Earl v. District of Columbia, also cited in our papers, this court, as a 2009 decision, relied on the Wallace v. Cato decision, the language in that decision that said, we look to the law of the state where the cause of action arises for Section 1983 claims, which is analog to the Bivens claim here.

[00:46:01] Speaker 01:
And so we would submit that this circuit itself has recognized that as the appropriate form.

[00:46:07] Speaker 01:
And to answer the suggestion, why was the statute of limitations not raised as the other claims, the simple answer to that is that the not going to announce claim was not raised in the 2007 cases.

[00:46:22] Speaker 01:
Plaintiff at page 15, note 6 of their reply, acknowledges that as to the not going to announce claim, they're not contending that there was any tolling by virtue of the heck bar that applied to the 2007 cases.

[00:46:37] Speaker 01:
So this is a new claim raised for the first time in 2012 that accrued in 2005.

[00:46:44] Speaker 01:
On its face, time barred.

[00:46:48] Speaker 01:
The Tinker decision.

[00:46:51] Speaker 05:
Unless unless the DC statute of limitations supplies.

[00:46:55] Speaker 01:
Well, we would submit, Your Honor, that the language in the D.C.

[00:47:00] Speaker 01:
tolling statute talks about imprisonment.

[00:47:02] Speaker 01:
And the Tinker case, at most, extended the concept of imprisonment to an arrest.

[00:47:08] Speaker 01:
So in other words, if there's excessive force as part of your arrest, you may be able to, under the Tinker case, have the benefit of tolling.

[00:47:17] Speaker 01:
But the entry preceded

[00:47:20] Speaker 01:
the arrest, in whether it preceded it by a minute or 10 minutes or 50 minutes, the D.C.

[00:47:27] Speaker 01:
statute does not recently establishes a bright line rule.

[00:47:33] Speaker 01:
Otherwise, the courts would be in a position of having to make a determination as to how far in advance.

[00:47:40] Speaker 05:
That's the point of statute of limitations.

[00:47:43] Speaker 05:
Yes.

[00:47:44] Speaker 05:
They devise a bright line rule.

[00:47:47] Speaker 01:
Exactly.

[00:47:47] Speaker 05:
If you're one day late or five minutes late, that's too bad.

[00:47:50] Speaker 01:
And it's very clear that the time of entry claim preceded the arrest as the plaintiff himself fled.

[00:47:57] Speaker 01:
So we would submit under either.

[00:47:58] Speaker 06:
Well, that's always going to be true, isn't it?

[00:48:01] Speaker 06:
Time of entry will always precede the arrest.

[00:48:04] Speaker 06:
Yes.

[00:48:05] Speaker 06:
Although, in this case, it might have been actually coincident because, as I understand it, when the door was opened,

[00:48:11] Speaker 06:
the officers saw the defendant at the top of the stairs, and he was obviously not free to leave.

[00:48:18] Speaker 01:
Well, he was actually, he pleads that he was in his bedroom at the time of the entry.

[00:48:24] Speaker 06:
I guess I do remember that, so I've seen both accounts, I don't know which one.

[00:48:27] Speaker 01:
Well, I think one of the accounts may be from some testimony that was referenced in the filings.

[00:48:35] Speaker 06:
So you're saying that the tolling begins when, in the time of arrest?

[00:48:43] Speaker 01:
I would submit that under the statute upon imprisonment, but that the Tinker case from the DC Court of Appeals arguably extends the term imprisonment to the point of arrest, to the moment of arrest, but not before.

[00:48:58] Speaker 01:
And I think what Appellant is trying to do is extend the Tinker decision to

[00:49:02] Speaker 01:
a conduct that occurred that clearly preceded any arrest.

[00:49:09] Speaker 06:
By how much?

[00:49:11] Speaker 01:
Well, they're saying by a minute or two.

[00:49:13] Speaker 01:
And what I submit is a bright line rule.

[00:49:16] Speaker 01:
So whether it's a minute or a day does not matter.

[00:49:21] Speaker 06:
So is there anything

[00:49:24] Speaker 06:
I guess there's nothing, by your account, there's nothing he could ever have done to file a timely complaint based on the violation of the Anakan Announcement.

[00:49:35] Speaker 01:
No, no, he could have included an Anakan Announcement in his 2007 policies.

[00:49:38] Speaker 01:
He didn't do so, so he has no basis to that.

[00:49:41] Speaker 05:
It's an odd statute to even suppose that it's a disability because someone's incarcerated.

[00:49:47] Speaker 05:
And Webster Bivens filed his complaint while he was sitting in the Atlanta Penitentiary.

[00:49:53] Speaker 05:
And I noticed that Mr. Jones has filed a number of complaints, although he's been in prison for, what, 12 years or so?

[00:50:01] Speaker 01:
Yes.

[00:50:01] Speaker 01:
And the one last point I'd like to make on that, and then I'll rest, is that in Jones' motion to dismiss opposition,

[00:50:11] Speaker 01:
At page 8, they allege that none of the claims are time-barred, and at page 19, footnote 3, they also make various arguments about the statute of limitations.

[00:50:21] Speaker 01:
So the statute of limitations was clearly placed at issue by our motion to dismiss, and clearly Jones was on notice of that and addressed statute of limitations issues in their own motion to dismiss opposition.

[00:50:33] Speaker 01:
If there are no further questions, we'd ask.

[00:50:36] Speaker 05:
You're not saying that – are you raising the – well, you still have an opportunity if the case gets remanded to raise statute of limitations in your answer, correct?

[00:50:48] Speaker 01:
Yes.

[00:50:48] Speaker 05:
Yeah.

[00:50:49] Speaker 05:
But are you – your last remarks confused me a little bit.

[00:50:52] Speaker 05:
Are you saying you're going to raise statute of limitations with respect to all three of the

[00:50:57] Speaker 01:
No, no, I'm sorry.

[00:50:58] Speaker 01:
I was just responding to the suggestion that the statute of limitations issue was raised for the first time in the report.

[00:51:05] Speaker 01:
And what I'm saying is that it was addressed broadly in our opening motion.

[00:51:09] Speaker 01:
And I think the plaintiffs understood that and addressed a broad, had a broad-based discussion of the statute of limitations issue in their opposition.

[00:51:18] Speaker 01:
OK.

[00:51:19] Speaker 01:
If there are no further questions, we ask that the judgment of the district court be affirmed.

[00:51:24] Speaker 01:
Thank you.

[00:51:25] Speaker 03:
Thank you.

[00:51:29] Speaker 03:
All right, Mr. Shelley, we'll give you three minutes for rebuttal.

[00:51:36] Speaker 02:
Thank you, Your Honor.

[00:51:37] Speaker 02:
To go to the Jones v. United States case that Judge Randolph mentioned, in fact, in the decision itself, Justice Harlan notes this, that it is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home that occurred in this instance.

[00:51:55] Speaker 02:
And with that, as the Yanis Marquez Court noted,

[00:52:00] Speaker 02:
begins the idea, or is noted in the Supreme Court, the idea that nighttime searches can be unreasonable under the Fourth Amendment, even if the word nighttime doesn't actually appear in the text of the Fourth Amendment.

[00:52:15] Speaker 05:
I also want to address a couple of the cases that... The court in that case held that because the warrant only authorized a daytime search, that this was a search without a warrant.

[00:52:30] Speaker 05:
and therefore was to be tested by whether it was reasonable or not, right?

[00:52:36] Speaker 02:
Correct.

[00:52:37] Speaker 02:
Whether there was probable cause, for instance, in this issue.

[00:52:39] Speaker 05:
Why shouldn't we follow that analysis here?

[00:52:42] Speaker 05:
In other words, follow Jones' case and say, okay, this was a search without a warrant.

[00:52:48] Speaker 02:
Well, I would say it is the truth.

[00:52:50] Speaker 02:
It is true.

[00:52:51] Speaker 02:
It's without a warrant, because it was at night when the warrant said day.

[00:52:54] Speaker 02:
It's, again, the Bivens idea, the Marrow idea.

[00:52:59] Speaker 02:
My opponent mentioned the Rizzi case of the Fourth Circuit, Gooding, the US Supreme Court case, Davis from the Fourth Circuit.

[00:53:05] Speaker 02:
They all involved situations where the warrant was silent.

[00:53:08] Speaker 02:
Didn't say, in other words, it said day or night.

[00:53:11] Speaker 02:
And to use that, then, as case law, saying that,

[00:53:16] Speaker 02:
that a nighttime search with a daytime warrant is potentially lawful, it doesn't follow from that.

[00:53:21] Speaker 02:
And in fact, in the Marquez case, the court said it's not a novel proposition that this is a problem, and it's a simple rule that should be applied.

[00:53:34] Speaker 02:
from those cases.

[00:53:36] Speaker 02:
And then I want to just mention for a second the Anderson case, which is from this circuit, is really not on point.

[00:53:41] Speaker 02:
It's not on point at all because that was one where a nighttime search was authorized and it occurred at night.

[00:53:46] Speaker 02:
And the only issue was did the judge there wrongly interpret Rule 41 to allow a nighttime search.

[00:53:52] Speaker 02:
It didn't involve, again, a breach of the actual warrant.

[00:53:55] Speaker 02:
And the last point I'd like to just mention is again on the imprisonment idea under the tolling statute for DC.

[00:54:01] Speaker 02:
And at page 28 of

[00:54:03] Speaker 02:
The government's brief note 10, they note the Tinker case, which we talked about a little bit, and this is how they summarize it.

[00:54:09] Speaker 02:
Holding that a claim of excessive force during arrest was told because the claim accrued during the arrest itself and indicating that the required incarceration under the tolling statute began at the time of the arrest.

[00:54:21] Speaker 02:
And if you go read the decision again,

[00:54:23] Speaker 02:
the excessive force occurred before he was arrested.

[00:54:27] Speaker 02:
And nonetheless, because it was all a contemporaneous event, the fact that it happened momentarily before the actual arrest didn't move the D.C.

[00:54:35] Speaker 02:
Court of Appeals, which should govern really the interpretation of the Toland statute here.

[00:54:41] Speaker 06:
Counsel, I'm not sure whether you covered this earlier or not.

[00:54:44] Speaker 06:
I think we established that the police left an inventory.

[00:54:49] Speaker 02:
Yes.

[00:54:50] Speaker 06:
You have the inventory?

[00:54:52] Speaker 02:
Yes.

[00:54:53] Speaker 02:
And it's in the Judgment Bell record.

[00:54:55] Speaker 06:
Okay.

[00:54:56] Speaker 06:
And so is it your position that the inventory will show that things outside the scope of the warrant were taken?

[00:55:09] Speaker 02:
Mr. Jones's point would be that the inventory shows what was taken.

[00:55:12] Speaker 02:
Some of it's very general, says miscellaneous.

[00:55:14] Speaker 02:
But his point would be none of it is, he knows that in his house, in his view, there was no indicia of drug dealing.

[00:55:23] Speaker 02:
Nonetheless, 40 boxes of material were taken when the search warrant attachment listing what could be taken all indicated, take these documents or these monies associated with drug trafficking.

[00:55:34] Speaker 02:
And so his point is if you compare the two,

[00:55:36] Speaker 02:
You might see something that says financial record and financial record, but not of drug trafficking.

[00:55:42] Speaker 06:
So, okay, so if you put the warrant and the receipt return next to each other, he would be able to say, here's a particular item that was seized that is not within the description of the warrant.

[00:56:00] Speaker 02:
He would say yes, but he would say all of the item Cs were not within the warrant, even as described, because the way he... So if the court said, okay, well, choose five, let's see them.

[00:56:11] Speaker 06:
Excuse me, Your Honor?

[00:56:11] Speaker 06:
If the court said, good, choose five, let's see, let's do a comparison.

[00:56:15] Speaker 02:
He would do that.

[00:56:15] Speaker 02:
He would do that.

[00:56:16] Speaker 02:
Although he's never seen the boxes.

[00:56:17] Speaker 02:
I believe he's... He's never seen the boxes, but he's got the receipt.

[00:56:23] Speaker 02:
He has the receipt, yes.

[00:56:26] Speaker 02:
So this claim is not really one, the way it was pled was not one of box 17 is a problem, box 24 is a problem.

[00:56:34] Speaker 02:
This is one of all boxes are a problem because they don't indicate drug trafficking and all my personal effects were nonetheless taken.

[00:56:42] Speaker 06:
So he's pled to drug trafficking, right?

[00:56:45] Speaker 06:
He has pled to drug trafficking.

[00:56:48] Speaker 02:
He has for a variety of reasons.

[00:56:51] Speaker 06:
He's in a position to say, I kept all of my drug paraphernalia and records of account and proceeds and everything else somewhere else.

[00:57:00] Speaker 02:
Well, he pled guilty based on the finding of narcotics at a different location, just narcotics at a different location, and after two hung juries, a reversal by the Supreme Court, and frankly, wanting to get on with his life at this point, and a reduced sentence as a result.

[00:57:17] Speaker 06:
Well, he'd served, what, eight out of the 15 years by that point.

[00:57:20] Speaker 02:
Exactly.

[00:57:21] Speaker 02:
It was almost done at this point.

[00:57:23] Speaker 02:
But we'd ask that the court reverse, again, all three, the holdings on all three aspects of Count 5 of the amended complaint.

[00:57:30] Speaker 03:
Thank you.

[00:57:31] Speaker 03:
We'll take the matter under advisement and we'll take a brief recess.