Palacios v. Burge, No. 07-0470 (2d Cir. 2009)
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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 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Docket No. 07-0470-pr -----------------------------------------------------x DAVID PALACIOS, Petitioner-Appellant, -- v. -JOHN W. BURGE, Superintendent, Auburn Correctional Facility, and ANDREW CUOMO, New York State Attorney General,* Respondents-Appellees.** -----------------------------------------------------x B e f o r e : 24 25 Decided: December 21, 2009) WALKER and SACK, Circuit Judges, and KOELTL, District Judge.*** Petitioner-Appellant David Palacios appeals from the judgment of the United States District Court for the Eastern 1 2 3 4 * 1 2 ** 1 2 3 *** Pursuant to Federal Rule of Appellate Procedure 43(c)(2), current Attorney General Andrew Cuomo is automatically substituted for former Attorney General Eliot L. Spitzer as a respondent. We direct the Clerk of the Court to amend the official caption as noted. The Honorable John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by 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. 7 included individuals reasonably suspected of perpetrating a 8 recent, soon-to-be fatal stabbing. 9 that the show-up was justified by exigent circumstances and, The show-up was limited in scope and duration, and There was a strong showing 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. 13 unreasonably apply clearly established Supreme Court law in 14 denying his ineffective assistance claim. 15 the district court s denial of Palacios s habeas petition. 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Therefore, the state courts did not We therefore affirm AFFIRMED. LAWRENCE T. HAUSMAN (Steven Banks, on the brief), Legal Aid Society, Criminal Appeals Bureau, New York, NY, for Petitioner-Appellant. JILL A. GROSS-MARKS (John M. Castellano, on the brief), Assistant District Attorneys, for Richard A. Brown, District Attorney, Queens County, Kew Gardens, NY, for RespondentsAppellees. JOHN M. WALKER, JR., Circuit Judge: 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. 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. 9 police conducted a show-up near the crime scene, limited in scope Palacios claims The 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. 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. 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. 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. 24 denial of Palacios s petition for a writ of habeas corpus. It was Similarly, it was not ineffective assistance to Accordingly, we conclude that the state Thus, we affirm the district court s 3 BACKGROUND 1 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. 8 9 Underlying Events The trial evidence showed that on the evening of April 27, 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.) 13 that there might be problems there between rival Mexican 14 gangs. 15 The police had information (Trial Tr. 14, 101.) 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. 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. (Trial Tr. 14-15.) Moments later, a BMW pulled up Djukanovic was unable to speak and died later that 4 1 night. 2 tried to steal the BMW, stabbed him and Djukanovic, and ran 3 towards the 30-30 Club. 4 ambulance stationed in front of the club to be treated for his 5 stab wounds. 6 Kolenovic told the officers that a group of Hispanic men The police placed Kolenovic in an 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. 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. 15 in the stabbing, but told the police that he had seen the fight 16 and could identify the individuals involved. 17 (Trial Tr. 103.) Mero denied any involvement 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. 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 officers sealed 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. 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. 6 separately identified the same six men, including Palacios, as 7 being involved in the stabbings. 8 to the precinct house. 9 The show-up During the show-up, Kolenovic and Mero The officers then took Palacios 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. 12 manually transcribed this confession, which Palacios signed. 13 II. 14 Detective Senzel Trial Court Proceedings 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. 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 June 30, 1997, counsel 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. 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. In particular, the trial judge (Trial Tr. 166.) As for 10 the confession, the trial judge determined that Palacios 11 knowingly, voluntarily, and intelligently waived his rights. 12 trial judge then denied Palacios s subsequent pro se motion to 13 suppress the confession. 14 The At Palacios s jury trial, Kolenovic was unable to identify 15 Palacios as a participant in the crime. 16 he had not committed the crimes charged and that he had confessed 17 under physical duress. 18 Palacios testified that 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. 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. 9 Palacios, 470 F. Supp. 2d at 219. Palacios alleged that a Fourth See The Appellate Division 10 affirmed Palacios s conviction, concluding that he had received 11 meaningful representation at trial. 12 N.Y.S.2d 302, 302 (App. Div. 2002). 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 People v. Palacios, 743 Palacios s application for 16 relief, again raising the claim that trial counsel had rendered 17 ineffective assistance. 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. 21 470 F. Supp. 2d 215, 221 (E.D.N.Y. 2007). 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 In January 2007, the district court 8 Palacios v. Burge, Although noting that a 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. 4 The district court concluded that under the limited standard of 5 [habeas] review, Palacios s petition had to be denied. 6 224. 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. 10 Id. at The district court, however, issued a certificate of Id. This appeal followed. DISCUSSION 11 12 Id. at 223. We review de novo the district court s decision to deny 13 Palacios habeas relief. 14 (2d Cir. 2002). 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. 23 2254(d). 24 See Jenkins v. Artuz, 294 F.3d 284, 290 Under the deferential standard of review 28 U.S.C. § 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. 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. 8 Specifically, Palacios argues that the state court unreasonably 9 applied the Supreme Court s decision in Strickland, 466 U.S. at Instead, Kimmelman v. Morrison, 477 U.S. 365, 380 (1986). 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. 15 Sixth and Fourth Amendment claim, Kimmelman, 477 U.S. at 380-83; 16 however, its elements of proof 17 18 19 20 21 22 23 24 25 26 27 28 29 30 We may grant habeas claim for such a hybrid differ[] significantly from [those] applicable to a straightforward Fourth Amendment claim. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like [Palacios] s, a good Fourth Amendment claim alone will not earn a prisoner habeas relief. Only those habeas petitions who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ and will be entitled to retrial without the challenged evidence, id. at 382. [I]n light of Strickland . . . , a Sixth Amendment 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. 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 Mosby v. Senkowski, 470 F.3d 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). 16 presumption that counsel s conduct falls within the wide range of 17 reasonable professional assistance. 18 Furthermore, on habeas appeal it is not enough for Palacios to 19 show a constitutional violation. 20 state court s application of Strickland was not merely 21 incorrect, but objectively unreasonable. 22 491 F.3d 84, 89 (2d Cir. 2007) (internal quotation marks 23 omitted). 24 in light of Supreme Court precedent regarding the state courts Under Strickland, there is a strong 466 U.S. at 689. He must also show that the Hemstreet v. Greiner, Specifically, Palacios must establish unreasonableness 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). 8 reach the prejudice prong. 9 There is therefore no cause for us to 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. 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: See, e.g., United Palacios s Fourth 18 Amendment Unreasonable Seizure Claim 19 A. 20 21 Exigent Circumstances in the Absence of Individualized Suspicion The Fourth Amendment protects individuals against 22 unreasonable searches and seizures. 23 search or seizure is ordinarily unreasonable in the absence of 24 individualized suspicion of wrongdoing, such as in cases in 12 U.S. Const. amend. IV. A 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). 4 Supreme Court, however, has made clear that The 5 6 7 8 9 10 11 12 13 14 [t]he touchstone of the Fourth Amendment is reasonableness, not individual suspicion. Thus, while th[e] Court s jurisprudence has often recognized that to accommodate public and private interests, some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure, . . . the Fourth Amendment imposes no irreducible requirement of such suspicion. 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. 27 Individualized suspicion is not needed, for example, in cases 28 involving an exigency that justifies immediate action on the 29 police s part. Edmond, 531 U.S. at 37. 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). 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. Specifically, the Edmond, 531 U.S. at 44. The show-up in this 10 case involves that exact exigency: 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: 19 first, one of the stabbed victims, had severe wounds, and the 20 second was a suspect who had tried to leave the scene. 21 challenged seizure does not violate the Fourth Amendment simply 22 because it was made without individualized suspicion. 23 24 The police knew that the the Thus, the A different result is not mandated by Ybarra v. Illinois, 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. 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. 6 (internal quotation marks omitted). 7 seizure in Ybarra was not justified by any exigent or emergency 8 circumstances. 9 the perpetrators whom they hoped to identify were among the The Ybarra Court found Id. at 91, 95-96 And, most importantly, the Here, the police knew to a virtual certainty that 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. 13 at 561 (explaining that body searches are ordinarily afforded 14 the most stringent Fourth Amendment protection ). 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. 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. 23 exigent circumstances, however, does not alone answer the 24 question of whether the show-up comports with the Fourth 15 See Martinez-Fuerte, 428 U.S. Therefore, Finding Our 1 Amendment. 2 which remains the touchstone of the Fourth Amendment, Samson, 3 547 U.S. at 855 n.4. 4 5 We must still examine whether it was reasonable, B. We now turn to that question. Totality of the Circumstances [T]o determine whether a search is reasonable within the 6 meaning of the Fourth Amendment, courts examine the totality of 7 the circumstances. 8 marks and alteration omitted). 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). Samson, 547 U.S. at 848 (internal quotation In considering the totality of 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. 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. 22 982 F.2d 64, 69 (2d Cir. 1992) (holding that a likelihood that 23 the suspect will escape supports a finding of exigency). 24 police had two eyewitnesses who were able to identify the 16 The See United States v. Gordils, The 1 perpetrators, but who may have been unable or unwilling to do so 2 in the future: 3 suspect who had already attempted to flee the scene. 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. 7 these circumstances, it was not unreasonable for the police to 8 settle on the show-up procedure that they adopted. 9 One was grievously wounded, and the other was a The police In light of 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. 15 at 423-27. 16 enforcement s need to acquire information about a recent crime 17 that had occurred in the vicinity. 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. 23 stop took place a week after the accident being investigated, the 24 show-up in this case took place immediately after the stabbings 540 U.S. Lidster, like the case at hand, involved law There is even more reason to Moreover, unlike Lidster, in which the traffic 17 1 and involved exigent circumstances, as detailed above. 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. 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 While the There was a strong 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. 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. at 19 623 (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 See, e.g., 1 2 and limited search for weapons). 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. 9 explained, the crime was serious and time was of the essence if 10 11 As we have identifications were to be made. 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. 16 the club itself, which was open to the public, did not yield the 17 same expectations of privacy as a private setting: 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. Martinez-Fuerte, 428 U.S. at 561. And The show-up 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. 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 detention was limited in scope: The 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. 12 also id. (finding reasonable a two-hour time restraint of an 13 individual in his home). 14 Id. at 332; see 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 . . . . 18 837. 19 barriers to the exercise of virtually all search-and-seizure 20 powers, 21 hamper the police s ability to make swift, on-the-spot 22 decisions, United States v. Sokolow, 490 U.S. 1, 11 (1989). 23 the situation at hand, the police could not have reduced further 24 the number of potential suspects nor would it have been Earls, 536 U.S. at Indeed, finding to the contrary could raise insuperable Martinez-Fuerte, 428 U.S. at 556 n.12, and unduly 20 In 1 practicable to bring the witnesses into the crowded club: One 2 was grievously wounded and the other was himself a suspect. 3 are not inclined to indulge in [such] unrealistic second- 4 guessing as to other methods that might have been employed. 5 (internal quotation marks omitted). We Id. 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. 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. 18 also Strickland, 466 U.S. at 687-88. Accordingly, we conclude that Palacios has not shown Kimmelman, 477 U.S. at 381; see 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. 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. It necessarily 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 16 court is AFFIRMED. 22
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