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Stone v. Powell bar cannot be avoided by creative Fourteenth Amendment argument of a real Fourth Amendment claim

By John Wesley Hall, Jr.

Habeas petitioner's attempt to cast manufactured exigent circumstances claim as a Fourteenth Amendment issue rather than a Fourth Amendment issue did not circumvent Stone. COA denied. Barber v. Jones, 2008 U.S. App. LEXIS 11526 (10th Cir. May 28, 2008): Mr. Barber argues that Stone does not apply to this issue, because the arresting officers' conduct in "creating an 'exigent circumstance' through fraud and de[]ception ... was in violation of the 14th Amendment and that is not the same as the 4th Amendment." Aplt. Br. at 16. A person who asserts that his arrest or physical incarceration was unreasonable or unwarranted, however, is making a Fourth Amendment argument-he cannot use the Fourteenth Amendment as "a fallback to protect interests more specifically addressed by the Fourth Amendment in this context...continue to full post

Full post as published by Fourth Amendment on May 31, 2008 (boomark / email).