Palacios v. Burge , 589 F.3d 556 ( 2009 )

07-0470-pr
Palacios v. Burge
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term 2008
5 (Argued: March 11, 2009 Decided: December 21, 2009)
6 Docket No. 07-0470-pr
7 -----------------------------------------------------x
8 DAVID PALACIOS,
9
10 Petitioner-Appellant,
11
12 -- v. --
13
14 JOHN W. BURGE, Superintendent, Auburn Correctional
15 Facility, and ANDREW CUOMO, New York State Attorney
16 General,*
17
18 Respondents-Appellees.**
19
20 -----------------------------------------------------x
21
22 B e f o r e : WALKER and SACK, Circuit Judges, and KOELTL,
23 District Judge.***
24 Petitioner-Appellant David Palacios appeals from the
25 judgment of the United States District Court for the Eastern
*
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
2 current Attorney General Andrew Cuomo is automatically
3 substituted for former Attorney General Eliot L. Spitzer as a
4 respondent.
**
1 We direct the Clerk of the Court to amend the official
2 caption as noted.
***
1 The Honorable John G. Koeltl, of the United States District
2 Court for the Southern District of New York, sitting by
3 designation.
1
1 District of New York (Frederic Block, Judge) denying his petition
2 for habeas corpus pursuant to 28 U.S.C. § 2254, which alleges
3 that his counsel rendered him ineffective assistance in violation
4 of the Sixth Amendment by failing to move to suppress evidence of
5 Palacios’s show-up identification and confession under the Fourth
6 Amendment. The show-up was limited in scope and duration, and
7 included individuals reasonably suspected of perpetrating a
8 recent, soon-to-be fatal stabbing. There was a strong showing
9 that the show-up was justified by exigent circumstances and,
10 based on the totality of the circumstances, was reasonable, and
11 that the show-up did not unconstitutionally taint Palacios’s
12 subsequent confession. Therefore, the state courts did not
13 unreasonably apply clearly established Supreme Court law in
14 denying his ineffective assistance claim. We therefore affirm
15 the district court’s denial of Palacios’s habeas petition.
16 AFFIRMED.
17 LAWRENCE T. HAUSMAN (Steven Banks,
18 on the brief), Legal Aid Society,
19 Criminal Appeals Bureau, New York,
20 NY, for Petitioner-Appellant.
21
22 JILL A. GROSS-MARKS (John M.
23 Castellano, on the brief),
24 Assistant District Attorneys, for
25 Richard A. Brown, District
26 Attorney, Queens County, Kew
27 Gardens, NY, for Respondents-
28 Appellees.
29
30 JOHN M. WALKER, JR., Circuit Judge:
31 Petitioner-Appellant David Palacios appeals from the
2
1 judgment of the United States District Court for the Eastern
2 District of New York (Frederic Block, Judge) denying his petition
3 for habeas corpus pursuant to 28 U.S.C. § 2254. Palacios claims
4 that he is entitled to a writ of habeas corpus because the state
5 courts unreasonably applied clearly established Supreme Court law
6 in rejecting his claim that counsel rendered ineffective
7 assistance by failing to move to suppress evidence of his show-up
8 identification and confession under the Fourth Amendment. The
9 police conducted a show-up near the crime scene, limited in scope
10 and duration, that included individuals who were reasonably
11 suspected of perpetrating a recent, soon-to-be fatal stabbing.
12 We find that the state courts did not unreasonably reject the
13 petitioner’s claim of ineffective assistance of counsel. It was
14 not ineffective assistance to fail to raise a Fourth Amendment
15 claim challenging the show-up, which involved exigent
16 circumstances and, based on the totality of the circumstances,
17 was reasonable. Similarly, it was not ineffective assistance to
18 fail to challenge the subsequent confession as the fruit of the
19 show-up where there was an insufficient showing that the show-up
20 was unconstitutional. Accordingly, we conclude that the state
21 courts did not unreasonably apply Strickland v. Washington, 466
22 U.S. 668, 688 (1984), when they rejected Palacios’s claim of
23 ineffective assistance. Thus, we affirm the district court’s
24 denial of Palacios’s petition for a writ of habeas corpus.
3
1 BACKGROUND
2 David Palacios was convicted following a jury trial in New
3 York Supreme Court, Queens County, of single counts of assault
4 and murder, and sentenced respectively to consecutive,
5 indeterminate sentences of eleven to twenty-two years and twenty-
6 five years to life.
7 I. Underlying Events
8 The trial evidence showed that on the evening of April 27,
9 1997, undercover New York City police officers Richard Crespo,
10 James O’Boyle, and Daniel Corey conducted surveillance at the 30-
11 30 Club in Queens, New York, which was holding a “Mexican party.”
12 (Trial Tr. 101 Feb. 10-11, 1998.) The police had information
13 that “there might be problems there” between “rival Mexican
14 gangs.” (Trial Tr. 14, 101.)
15 The club opened at 9:00 p.m. After ten to fifteen minutes,
16 Officer Crespo saw several men whom he thought to be Hispanic
17 “run in front of . . . people . . . waiting” in line outside of
18 the club. (Trial Tr. 14-15.) Moments later, a BMW pulled up
19 across the street from the club, and a man, Edin Kolenovic,
20 emerged from the car shouting and waving his arms frantically.
21 When the officers approached Kolenovic, they saw that his shirt
22 was bloody, and that his passenger and brother-in-law, Sanin
23 Djukanovic, had been beaten and stabbed, and was bleeding
24 profusely. Djukanovic was unable to speak and died later that
4
1 night. Kolenovic told the officers that a group of Hispanic men
2 tried to steal the BMW, stabbed him and Djukanovic, and ran
3 towards the 30-30 Club. The police placed Kolenovic in an
4 ambulance stationed in front of the club to be treated for his
5 stab wounds.
6 In “secur[ing] the area” around the club, (Trial Tr. 18,)
7 the officers arranged with the club’s security personnel to let
8 into the club the forty or fifty individuals in line outside.
9 When one person, William Mero, stepped out of the line and tried
10 to leave, the police stopped him and walked him in front of the
11 parked ambulance to “conduct [] a show-up.” (Trial Tr. 103.)
12 Kolenovic identified Mero as “one of the guys,” (Trial Tr. 110,)
13 and Officer Corey handcuffed Mero and put him in an unmarked
14 patrol car with a view of the club. Mero denied any involvement
15 in the stabbing, but told the police that he had seen the fight
16 and could identify the individuals involved.
17 Inside the club, at the officers’ request, the club owner
18 stopped the music and announced that the police planned to escort
19 all the male patrons outside for a show-up to identify anyone
20 connected to the stabbing that had occurred. The officers sealed
21 the exits, separated out the women, and lined up at the front of
22 the club the approximately 170 men, all of whom looked to them to
23 be Hispanic and ranged in age from about eighteen to twenty-five
24 years. The police then had the men walk, one by one, out the
5
1 front door and in front of Kolenovic and Mero, who were in the
2 ambulance and the unmarked car, respectively. The show-up
3 process began at approximately 10:00 p.m., and ended less than
4 forty minutes later, after which the patrons outside were allowed
5 back into the club. During the show-up, Kolenovic and Mero
6 separately identified the same six men, including Palacios, as
7 being involved in the stabbings. The officers then took Palacios
8 to the precinct house.
9 The following day, after Detective Laurie Senzel read
10 Palacios his Miranda rights in both English and Spanish, Palacios
11 orally confessed to stabbing Djukanovic. Detective Senzel
12 manually transcribed this confession, which Palacios signed.
13 II. Trial Court Proceedings
14 On June 17, 1997, Palacios’s then-counsel Paul Testaverde
15 filed a motion challenging the constitutionality of both the
16 identification procedure used by the police outside of the 30-30
17 Club, and the confession, which Palacios claimed that he had
18 given only under physical duress. On June 30, 1997, counsel
19 Robert R. Race, who replaced Testaverde, filed a separate motion
20 that challenged the reliability of Kolenovic’s pre-trial
21 identification and the voluntariness of Palacios’s statements,
22 but did not challenge the legality of the police seizure of
23 Palacios.
24 On September 22, 1997, after holding a combined pre-trial
6
1 hearing pursuant to United States v. Wade, 388 U.S. 218 (1967),
2 and People v. Huntley, 204 N.E.2d 179 (N.Y. 1965), the trial
3 judge determined that “all of the witnesses testified credibly,”
4 (Trial Tr. 160,) found the show-up evidence and confession to be
5 constitutionally permissible, and declined to suppress either
6 item of evidence at trial. In particular, the trial judge
7 “note[d] that the identification of the defendant through this
8 short [show-up] procedure was both tempora[l]ly and spatially
9 close to the events . . . in question.” (Trial Tr. 166.) As for
10 the confession, the trial judge determined that Palacios
11 knowingly, voluntarily, and intelligently waived his rights. The
12 trial judge then denied Palacios’s subsequent pro se motion to
13 suppress the confession.
14 At Palacios’s jury trial, Kolenovic was unable to identify
15 Palacios as a participant in the crime. Palacios testified that
16 he had not committed the crimes charged and that he had confessed
17 under physical duress.
18 The jury found Palacios guilty of both assault and murder,
19 and the trial judge sentenced Palacios to eleven to twenty-two
20 years for the former and twenty-five years to life for the
21 latter, to be served consecutively.
22 III. Subsequent Proceedings
23 In January 2002, Palacios, on appeal to the Appellate
24 Division, Second Department, argued that he had been deprived of
7
1 effective assistance of counsel under Strickland, 466 U.S. at
2 688, because his counsel unreasonably failed to challenge the
3 lawfulness of his show-up and detention, and failed to move to
4 suppress his confession as the fruit of the unlawful detention
5 under the Fourth Amendment. Palacios alleged that a Fourth
6 Amendment challenge to the show-up would have been successful,
7 because the show-up was not based upon any “individualized
8 suspicion” of a particular individual at the 30-30 Club. See
9 Palacios, 470 F. Supp. 2d at 219. The Appellate Division
10 affirmed Palacios’s conviction, concluding that he had received
11 “meaningful representation” at trial. People v. Palacios, 743
12 N.Y.S.2d 302, 302 (App. Div. 2002). Palacios’s application for
13 leave to appeal to the New York Court of Appeals was denied.
14 People v. Palacios, 779 N.E.2d 193 (N.Y. 2002) (table decision).
15 Palacios then filed the instant petition for federal habeas
16 relief, again raising the claim that trial counsel had rendered
17 ineffective assistance. In January 2007, the district court
18 denied the petition on the basis that Palacios had failed to show
19 that the trial court unreasonably applied Supreme Court precedent
20 in determining that the claim lacked merit. Palacios v. Burge,
21 470 F. Supp. 2d 215, 221 (E.D.N.Y. 2007). Although noting that a
22 show-up could run afoul of the United States Supreme Court’s
23 “individualized suspicion” requirement, the district court
24 determined that, “[i]n light of the generality with which the
8
1 requirement has been enunciated” by the Supreme Court, it would
2 not be “unreasonable” to conclude that the individualized
3 suspicion requirement was “satisfied in this case.” Id. at 223.
4 The district court concluded that under the “limited standard of
5 [habeas] review,” Palacios’s petition had to be denied. Id. at
6 224. The district court, however, issued a certificate of
7 appealability on Palacios’s ineffective assistance claim on the
8 basis that there was “room for reasonable debate . . . addressing
9 this ineffective-assistance/Fourth Amendment scenario.” Id.10 This appeal followed.
11 DISCUSSION
12 We review de novo the district court’s decision to deny
13 Palacios habeas relief. See Jenkins v. Artuz, 294 F.3d 284, 290
14 (2d Cir. 2002). Under the deferential standard of review
15 established by the Antiterrorism and Effective Death Penalty Act
16 of 1996 (AEDPA), where the petitioner’s claim “was adjudicated on
17 the merits in State court proceedings,” as here, we may only
18 grant habeas relief if the state court’s adjudication “was
19 contrary to, or involved an unreasonable application of, clearly
20 established Federal law as determined by the Supreme Court of the
21 United States,” or “was based upon an unreasonable determination
22 of the facts in light of the evidence presented.” 28 U.S.C. §
23 2254(d).
24 Although Stone v. Powell, 428 U.S. 465, 494 (1976), bars us
9
1 from considering Fourth Amendment challenges raised in a
2 petitioner’s petition for habeas relief, this appeal does not
3 squarely present a Fourth Amendment challenge. Instead,
4 Palacios’s habeas petition brings a “Sixth Amendment ineffective
5 assistance of counsel claim[] which [is] founded primarily on
6 incompetent representation with respect to a Fourth Amendment
7 issue.” Kimmelman v. Morrison, 477 U.S. 365, 380 (1986).
8 Specifically, Palacios argues that the state court unreasonably
9 applied the Supreme Court’s decision in Strickland, 466 U.S. at
10 688, by rejecting his claim that his counsel rendered
11 constitutionally deficient performance by failing to raise a
12 Fourth Amendment challenge seeking to suppress the identification
13 evidence and the “fruits of [Palacios’s] illegal detention.”
14 Pet’r Br. at 31. We may grant habeas claim for such a hybrid
15 Sixth and Fourth Amendment claim, Kimmelman, 477 U.S. at 380-83;
16 however, its “elements of proof”
17 differ[] significantly from [those] applicable to a
18 straightforward Fourth Amendment claim. Although a
19 meritorious Fourth Amendment issue is necessary to the
20 success of a Sixth Amendment claim like [Palacios]’s, a
21 good Fourth Amendment claim alone will not earn a
22 prisoner habeas relief. Only those habeas petitions
23 who can prove under Strickland that they have been
24 denied a fair trial by the gross incompetence of their
25 attorneys will be granted the writ and will be entitled
26 to retrial without the challenged evidence,
27
28 id. at 382.
29 “[I]n light of Strickland . . . , a Sixth Amendment
30 ineffective assistance of counsel claim necessarily invokes
10
1 federal law that has been ‘clearly established’ by the Supreme
2 Court within the meaning of AEDPA.” Mosby v. Senkowski, 470 F.3d
3 515, 518-19 (2d Cir. 2006) (internal quotation marks omitted);
4 see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000)
5 (recognizing the test set forth in Strickland as “clearly
6 established” law for AEDPA purposes).
7 Strickland requires that a “criminal defendant asserting
8 that counsel is constitutionally deficient” meet both a
9 “performance” test, showing that counsel’s representation “‘fell
10 below an objective standard of reasonableness,’” and a
11 “prejudice” test, demonstrating that “‘there is a reasonable
12 probability that, but for counsel’s unprofessional errors, the
13 result of the proceeding would have been different.’” Bell v.
14 Miller, 500 F.3d 149, 155 (2d Cir. 2007) (quoting Strickland, 466
15 U.S. at 688, 694). Under Strickland, there is a “strong
16 presumption that counsel’s conduct falls within the wide range of
17 reasonable professional assistance.” 466 U.S. at 689.
18 Furthermore, on habeas appeal it is not enough for Palacios to
19 show a constitutional violation. He must also show that the
20 state court’s “application of Strickland was not merely
21 incorrect, but objectively unreasonable.” Hemstreet v. Greiner,
22 491 F.3d 84, 89 (2d Cir. 2007) (internal quotation marks
23 omitted). Specifically, Palacios must establish unreasonableness
24 in light of Supreme Court precedent regarding the state courts’
11
1 Fourth Amendment determination, which underlies the ineffective
2 assistance claim.
3 For the reasons that follow, we find that Palacios failed to
4 satisfy the “performance” prong of the Strickland test, see 470
5 F. Supp. 2d at 221-23, and thus, that Palacios failed to meet
6 Strickland’s “rigorous” standard, Bell, 500 F.3d at 155 (internal
7 quotation marks omitted). There is therefore no cause for us to
8 reach the “prejudice” prong.
9 Because Palacios has not shown that his trial counsel was
10 ineffective for failing to raise a Fourth Amendment challenge to
11 his show-up, he has similarly failed to show that his counsel was
12 ineffective for failing to challenge his subsequent jailhouse
13 confession as the fruit of the poisonous tree. See, e.g., United
14 States v. Guarno, 819 F.2d 28, 32 (2d Cir. 1987) (finding that
15 “derivative evidence” need not be suppressed where the predicate
16 evidence was “properly obtained”).
17 I. Strickland’s “Performance” Prong: Palacios’s Fourth
18 Amendment Unreasonable Seizure Claim
19 A. Exigent Circumstances in the Absence of
20 Individualized Suspicion
21 The Fourth Amendment protects individuals “against
22 unreasonable searches and seizures.” U.S. Const. amend. IV. “A
23 search or seizure is ordinarily unreasonable in the absence of
24 individualized suspicion of wrongdoing,” such as in cases in
12
1 which the “primary purpose of the [seizure] is ultimately
2 indistinguishable from the general interest in crime control.”
3 City of Indianapolis v. Edmond, 531 U.S. 32, 37, 48 (2000). The
4 Supreme Court, however, has made clear that
5 [t]he touchstone of the Fourth Amendment is
6 reasonableness, not individual suspicion. Thus, while
7 th[e] Court’s jurisprudence has often recognized that “to
8 accommodate public and private interests, some quantum of
9 individualized suspicion is usually a prerequisite to a
10 constitutional search or seizure,” . . . the “Fourth
11 Amendment imposes no irreducible requirement of such
12 suspicion.”
13
14 Samson v. California, 547 U.S. 843, 855 n.4 (2006) (quoting
15 United States v. Martinez-Fuerte, 428 U.S. 543, 560-61 (1976))
16 (emphasis added); accord Nat’l Treasury Employees Union v. Von
17 Raab, 489 U.S. 656, 665 (1989) (reaffirming the “longstanding
18 principle” that no “measure of individualized suspicion . . . is
19 an indispensable component of reasonableness in every
20 circumstance”); Skinner v. Ry Labor Executives’ Ass’n, 489 U.S.
21 602, 624 (1989) (“[A] showing of individualized suspicion is not
22 a constitutional floor, below which a search must be presumed
23 unreasonable.”).
24 Accordingly, the Supreme Court has recognized “limited
25 circumstances in which the usual rule [requiring individualized
26 suspicion] does not apply.” Edmond, 531 U.S. at 37.
27 Individualized suspicion is not needed, for example, in cases
28 involving “an exigency that justifies immediate action on the
29 police’s part.” Georgia v. Randolph, 547 U.S. 103, 117 n.6
13
1 (2006); see also id. (collecting and summarizing exigent
2 circumstances that may justify warrantless searches); Edmond, 531
3 U.S. at 44 (recognizing circumstances involving “exigencies” that
4 permit seizures without individualized suspicion); United States
5 v. Harper, 617 F.2d 35 (4th Cir. 1980). Specifically, the
6 Supreme Court has indicated that such an exigency exists when the
7 police utilize an “appropriately tailored” seizure “set up . . .
8 to catch a dangerous criminal who is likely to flee by way of a
9 particular route.” Edmond, 531 U.S. at 44. The show-up in this
10 case involves that exact exigency: The police knew that the
11 perpetrators were within the finite group of men, whom the
12 officers understood to be Hispanic, inside or lined up outside of
13 the 30-30 Club near the stabbing, and the show-up was
14 contemporaneous to the stabbings and aimed to identify and arrest
15 dangerous criminals who were likely to flee the club and
16 surrounding area were it not for the police seizure. Moreover,
17 there was a high risk that the two witnesses who could identify
18 the perpetrators would not be available at a later time: the
19 first, one of the stabbed victims, had severe wounds, and the
20 second was a suspect who had tried to leave the scene. Thus, the
21 challenged seizure does not violate the Fourth Amendment simply
22 because it was made without individualized suspicion.
23 A different result is not mandated by Ybarra v. Illinois,
24 444 U.S. 85, 91-92 (1979), which found unreasonable body frisks
14
1 of a tavern’s patrons based on an informant’s tip that one of the
2 tavern’s bartenders possessed heroin. The Ybarra Court found
3 that the “rash and unreasonable interferences with privacy” at
4 issue were based solely on “a person’s mere propinquity to others
5 independently suspected of criminal activity.” Id. at 91, 95-96
6 (internal quotation marks omitted). And, most importantly, the
7 seizure in Ybarra was not justified by any exigent or emergency
8 circumstances. Here, the police knew to a virtual certainty that
9 the perpetrators whom they hoped to identify were among the
10 patrons and likely to escape, and briefly detaining these patrons
11 and instructing them to walk outside, unlike the body frisks in
12 Ybarra, was minimally intrusive. See Martinez-Fuerte, 428 U.S.
13 at 561 (explaining that body searches are “ordinarily afforded
14 the most stringent Fourth Amendment protection”). Therefore,
15 there was a strong showing in this case that the show-up was
16 justified by emergency and exigent circumstances that did not
17 require a showing of individualized suspicion, and “no
18 particularized reason need exist to justify it,” id. at 563. Our
19 decision in this case in no way affects the need for
20 individualized suspicion in cases primarily “relat[ing] to
21 ordinary crime control,” Edmond, 531 U.S. at 44, and not
22 involving exigencies similar to those presented here. Finding
23 exigent circumstances, however, does not alone answer the
24 question of whether the show-up comports with the Fourth
15
1 Amendment. We must still examine whether it was reasonable,
2 which remains the “touchstone of the Fourth Amendment,” Samson,
3 547 U.S. at 855 n.4. We now turn to that question.
4 B. Totality of the Circumstances
5 “[T]o determine whether a search is reasonable within the
6 meaning of the Fourth Amendment,” courts “examine the totality of
7 the circumstances.” Samson, 547 U.S. at 848 (internal quotation
8 marks and alteration omitted). In considering the “totality of
9 the circumstances--the whole picture,” United States v. Cortez,
10 449 U.S. 411, 417 (1981), we take into account “the facts known
11 to the officers,” Alabama v. White, 496 U.S. 325, 330-31 (1990),
12 and “balance the privacy-related and law enforcement-related
13 concerns,” Illinois v. McArthur, 531 U.S. 326, 331 (2001).
14 Here, the police knew that two serious stabbings had
15 occurred (one soon-to-be fatal), and they were armed with
16 reliable information that the perpetrators were among the group
17 of individuals inside or lined up outside of the 30-30 Club. The
18 police could have reasonably believed that the delay necessary to
19 procure a warrant would thwart the possibility of ever finding
20 the perpetrators, by increasing the likelihood that one or more
21 of them would be able to get away. See United States v. Gordils,
22 982 F.2d 64, 69 (2d Cir. 1992) (holding that “a likelihood that
23 the suspect will escape” supports a finding of exigency). The
24 police had two eyewitnesses who were able to identify the
16
1 perpetrators, but who may have been unable or unwilling to do so
2 in the future: One was grievously wounded, and the other was a
3 suspect who had already attempted to flee the scene. The police
4 had reason to believe that the perpetrators posed an immediate
5 danger to others inasmuch as they were armed, in a crowded place,
6 and had just engaged in an act of extreme violence. In light of
7 these circumstances, it was not unreasonable for the police to
8 settle on the show-up procedure that they adopted.
9 We find instructive the Supreme Court’s decision in Illinois
10 v. Lidster, 540 U.S. 419, 424 (2004), which held that the police
11 did not run afoul of the Fourth Amendment by stopping motorists
12 at a highway checkpoint to ask them about a fatal hit-and-run
13 accident that had taken place a week earlier on that highway,
14 notwithstanding the lack of individualized suspicion. 540 U.S.
15 at 423-27. Lidster, like the case at hand, involved law
16 enforcement’s need to acquire information about a recent crime
17 that had occurred in the vicinity. There is even more reason to
18 find the show-up procedure in the instant case to be
19 constitutionally permissible than the purely “information-
20 seeking” traffic stop in Lidster, id., because the police had
21 reason to believe that the club patrons included the perpetrators
22 of the stabbings. Moreover, unlike Lidster, in which the traffic
23 stop took place a week after the accident being investigated, the
24 show-up in this case took place immediately after the stabbings
17
1 and involved exigent circumstances, as detailed above. While the
2 length of the detention in this case was greater than the
3 duration of the stop in Lidster, the urgency for immediate police
4 action was also substantially greater. There was a strong
5 showing in this case that, as in Lidster, the challenged seizure
6 was “reasonable in context,” id. at 426, and “hence
7 constitutional,” id. at 421.
8 The balance of interests further supports this conclusion.
9 A search, or in this case, an identification procedure, may be
10 reasonable where privacy concerns are minimal, the government
11 interest is furthered by the intrusion, and the intrusion is
12 properly tailored in time and scope to this interest. See, e.g.,
13 id. at 424-25 (upholding a brief information-seeking highway
14 stops without any individualized suspicion); McArthur, 531 U.S.
15 at 330-34 (affirming the temporary restraint of an individual in
16 a home believed to contain evidence of a crime and unlawful
17 drugs); Pennsylvania v. Labron, 518 U.S. 938, 940-41 (1996) (per
18 curiam) (upholding an automobile search); Skinner, 489 U.S. at19 623 (affirming a warrantless drug-testing of railroad employees);
20 Michigan v. Summers, 452 U.S. 692, 702-05 (1981) (upholding a
21 temporary, warrantless detention of suspect without arrest to
22 prevent flight); Martinez-Fuerte, 428 U.S. at 560-62 (affirming
23 checkpoint border stops to guard against illegal immigration);
24 Terry v. Ohio, 392 U.S. 1, 27 (1968) (upholding a temporary stop
18
1 and limited search for weapons).
2 Here, strong public interest and law enforcement concerns
3 supported the need for the intrusion, because “the government’s
4 interest in dispensing with the warrant requirement is at its
5 strongest when . . . ‘the burden of obtaining a warrant is likely
6 to frustrate the governmental purpose behind the search.’”
7 Skinner, 489 U.S. at 623 (quoting Camara v. Mun. Court, 387 U.S.
8 523, 533 (1967)); e.g., Gordils, 982 F.2d at 69. As we have
9 explained, the crime was serious and time was of the essence if
10 identifications were to be made.
11 Moreover, privacy concerns were reduced in this case. The
12 show-up procedure on the street outside the club neither
13 constituted a “search[] nor [affected] the sanctity of private
14 dwellings, ordinarily afforded the most stringent Fourth
15 Amendment protection.” Martinez-Fuerte, 428 U.S. at 561. And
16 the club itself, which was open to the public, did not yield the
17 same expectations of privacy as a private setting: The show-up
18 procedure, whereby the officers simply directed Palacios to line
19 up inside the club and walk outside when so instructed, was far
20 less invasive than, for example, a body frisk, which constitutes
21 “a serious intrusion upon the sanctity of the person,” “may
22 inflict great indignity,” and “is not to be undertaken lightly.”
23 Terry, 392 U.S. at 17; see also Ybarra, 444 U.S. at 95-96; Terry,
24 392 U.S. at 16-17, 17 n.13. Thus, this case did not involve
19
1 heightened privacy interests that outweigh the law enforcement
2 needs that prompted the show-up.
3 In addition, because the police took “reasonable efforts to
4 reconcile their law enforcement needs with the demands of
5 personal privacy,” McArthur, 531 U.S. at 332, there was
6 appropriate tailoring. The detention was limited in scope: The
7 police separated out the women and briefly held only the possible
8 male suspects followed by the request that the men line up and
9 walk out of the club one-by-one. The seizure was also limited in
10 duration and was “no longer than necessary for the police, acting
11 with diligence,” to identify the perpetrators. Id. at 332; see
12 also id. (finding reasonable a two-hour time restraint of an
13 individual in his home).
14 Finally, the show-up is not realistically susceptible to an
15 argument that it could have been less restrictive.
16 “[R]easonableness under the Fourth Amendment does not require
17 employing the least intrusive means . . . .” Earls, 536 U.S. at
18 837. Indeed, finding to the contrary could “raise insuperable
19 barriers to the exercise of virtually all search-and-seizure
20 powers,” Martinez-Fuerte, 428 U.S. at 556 n.12, and “unduly
21 hamper the police’s ability to make swift, on-the-spot
22 decisions,” United States v. Sokolow, 490 U.S. 1, 11 (1989). In
23 the situation at hand, the police could not have reduced further
24 the number of potential suspects nor would it have been
20
1 practicable to bring the witnesses into the crowded club: One
2 was grievously wounded and the other was himself a suspect. We
3 are not inclined to “indulge in [such] unrealistic second-
4 guessing” as to other methods that might have been employed. Id.
5 (internal quotation marks omitted).
6 Rather than supporting a “good Fourth Amendment claim,”
7 Kimmelman, 477 U.S. at 382, the “totality of the circumstances,”
8 Cortez, 449 U.S. at 417, and the “balance [of] privacy-related
9 and law enforcement-related concerns,” McArthur, 531 U.S. at 331,
10 undermine Palacios’s claim that the police show-up, following the
11 Djukanovic and Kolenovic stabbings, violated Palacios’s Fourth
12 Amendment rights and tainted his subsequent arrest and
13 confession. Accordingly, we conclude that Palacios has not shown
14 that counsel’s decision not to pursue a Fourth Amendment
15 challenge respecting the show-up rose to the level of
16 “incompetence” as “unreasonable under prevailing professional
17 norms” and “not sound strategy.” Kimmelman, 477 U.S. at 381; see
18 also Strickland, 466 U.S. at 687-88.
19 II. Strickland’s “Prejudice” Prong
20 Because Palacios’s claim fails to demonstrate
21 constitutionally deficient “performance,” the first prong of the
22 Strickland test, this court need not reach the second “prejudice”
23 prong.
24 CONCLUSION
21
1 For the reasons we have stated, Palacios has failed to meet
2 his burden regarding his ineffective assistance of counsel claim.
3 Palacios cites to, and we have found, no Supreme Court case that
4 establishes that show-ups of the sort employed here, immediately
5 following the commission of a violent crime in the vicinity, are
6 unlawful seizures under the Fourth Amendment. It necessarily
7 follows that the state court’s denial of Palacios’s ineffective
8 assistance claim was not an unreasonable application of clearly
9 established federal law as determined by the Supreme Court. Upon
10 reviewing the state court’s determination that Palacios did not
11 receive ineffective assistance of counsel, see id. at 90 n.2, we
12 conclude that Palacios is not entitled to a writ of habeas
13 corpus, and that the district court properly denied his petition.
14 For the foregoing reasons, the judgment of the district
15 court is AFFIRMED.
16
22