 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 21, 2016              Decided August 26, 2016

                        No. 14-5257

                     ANTOINE JONES,
                      APPELLANT

                            v.

      STEVE KIRCHNER, D.C. MPD DETECTIVE, ET AL.,
                      APPELLEES


                Consolidated with 15-5088


       Appeals from the United States District Court
               for the District of Columbia
                   (No. 1:12-cv-01334)


    Anthony F. Shelley argued the cause for appellant. With
him on the briefs was Andrew T. Wise, Kathleen T. Wach, and
Arthur B. Spitzer. Adam W. Braskich entered an appearance.

    Jeremy S. Simon, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney. Peter C. Pfaffenroth,
Assistant U.S. Attorney, entered an appearance.

   Before: WILKINS, Circuit Judge, and GINSBURG and
RANDOLPH, Senior Circuit Judges.
                                 2
    Opinion for the Court filed by Senior Circuit Judge
GINSBURG.

    Opinion dissenting in part and concurring in the
judgment in part filed by Senior Circuit Judge RANDOLPH.

GINSBURG, Senior Circuit Judge: Plaintiff Antoine Jones
appeals the district court’s order dismissing his Bivens and
§ 1983 claims against individual agents of the Federal Bureau
of Investigation and a Metropolitan Police Department
detective arising out of a search of his home and his
coinciding arrest in 2005. 1 For the following reasons, we
affirm in part and reverse in part the order of the district court,
and remand this matter to that court for further proceedings.

                        I.   Background

    During the course of a narcotics investigation, a federal
magistrate judge in the District of Maryland signed a warrant
to search Antoine Jones’s home. The magistrate struck
language in the warrant form that would have permitted its
execution without time restrictions, causing the warrant to
read, in relevant part:

        YOU ARE HEREBY COMMANDED to
        search . . . the . . . place named above . . .
        serving this warrant and making the search (in
        the daytime – 6:00 A.M. to 10:00 P.M.)(at any


1
  The district court also dismissed additional claims against these
and other defendants arising out of their search of an apartment and
a warehouse owned by Jones and for attaching a GPS tracking
device to his car, all without warrants. Jones does not appeal those
rulings.
                                3
       time in the day or night as I find reasonable
       cause has been established). 2

     According to the allegations in Jones’s complaint, at 4:45
AM on October 24, 2005, one MPD detective and 11 FBI
agents executed the search warrant and arrested Jones at
gunpoint in his bedroom. Jones v. Kirchner, 66 F. Supp. 3d
237, 241 (D.D.C. 2014). During the course of the search, the
officers seized 30 to 40 boxes of personal property. Id.
Although Jones does not allege specifically what the boxes
contained, 3 he does allege the “Defendants found no evidence
of any crime at the [home],” and that the seizure therefore
“unlawfully exceeded the scope of the warrant.” Jones also
alleges the officers broke into and entered his home “using an
unauthorized key to gain entry,” “without knocking and
announcing” their presence, and without the justification of
“exigent circumstances.”

     Jones has been incarcerated since his arrest. His first trial
resulted in a hung jury and a mistrial. He was convicted after
his second trial and sentenced to life in prison, but we
overturned his conviction after concluding the Fourth
Amendment prevented law enforcement officers from
installing a GPS tracking device on Jones’s car without a

2
  The warrant and warrant return are reproduced as an Appendix to
this opinion.
3
  Jones received a warrant receipt listing what was taken from his
home, but the descriptions are vague. See Warrant Return, Doc.
No. 619-7 in United States v. Jones, No. 05-cr-386 (D.D.C. May
22, 2012). For example, Box # 22 is described as containing
“Personal Papers in the name of A. Jones and Deniece Jones.” Box
# 16, meanwhile, is simply labelled “Misc. documents from Room
H, large bureau.”
                               4
warrant and using it to monitor his movements for 28 days.
United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010),
aff’d sub nom United States v. Jones, 132 S. Ct. 945 (2012).
Jones’s third trial resulted in another hung jury, after which he
pleaded guilty and was sentenced to 15 years in prison.

     In this case, Jones alleges, among other things, that the
failure of the police to knock and announce before entering,
their seizure of the property contained in the boxes, and their
nighttime execution of the search violated his rights under the
Fourth Amendment to the Constitution of the United States.
See Am. Compl. ¶¶ 57-61. Jones sought damages from the
FBI agents pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
from the MPD officer pursuant to 42 U.S.C. § 1983. The
Defendants filed a motion to dismiss the case pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim, which motion the district court granted in full. Jones,
66 F. Supp. 3d 237.

     The district court held that under the standard set forth in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), Jones had failed to
“plead sufficient facts to raise his allegations” of a knock-and-
announce violation and an unlawful seizure “from possibility
to plausibility! [sic]” Id. at 245. Specifically, because the
complaint asserted Jones was upstairs at the time of the entry,
the district court said it “may infer that Mr. Jones did not hear
a knock and announce, but no more.” Id. With respect to the
seizure, the district court held the allegation was conclusory
because the complaint “does not identify what property was
seized, describe the scope of the [attached] warrant, nor allege
how the seized items exceeded that scope.” Id. at 246. The
district court also held the Defendants were entitled to
                                 5
qualified immunity for their nighttime execution of the search
warrant. Jones timely appealed.

                          II. Analysis

     “We review de novo the district court’s Rule 12(b)(6)
dismissal” of Jones’s claims, accepting all well-pleaded
factual allegations of the complaint as true and drawing in
Jones’s favor all reasonable inferences from those allegations.
Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1128-29
(D.C. Cir. 2015).

                A. Plausibility of Allegations

     The Fourth Amendment requires law enforcement
officers, before entering the premises to be searched, to
announce their presence and provide residents an opportunity
to open the door, see Wilson v. Arkansas, 514 U.S. 927, 931-
32 (1995), except under exigent circumstances, see Hudson v.
Michigan, 547 U.S. 586, 589-90 (2006). The Amendment
also requires that warrants “particularly describ[e] the place to
be searched, and the persons or things to be seized,” which
operates to “prevent[] the seizure of one thing under a warrant
describing another.” Marron v. United States, 275 U.S. 192,
195-96 (1927).

     Jones’s complaint alleges the Defendants violated both
these limitations. A complaint must contain “sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotations omitted). As required by Federal Rule of Civil
Procedure 8, the pleadings must “give the defendants fair
notice of what the claim is and the grounds upon which it
rests,” Twombly, 550 U.S. at 555 (internal quotations and
alterations omitted), but the Rule “does not require detailed
                                 6
factual allegations,” Iqbal, 556 U.S. at 678 (internal
quotations omitted). The amended complaint easily meets
these minimum requirements. Taking Jones’s allegations as
true for the purpose of passing upon a motion to dismiss, see
Twombly, 550 U.S. at 555, he has made a prima facie
showing the Defendants violated the Fourth Amendment.

     Jones can try to prove the knock-and-announce violation
by testifying that he did not hear a knock. If the Defendants
did, in fact, knock, then they can so testify to refute Jones’s
claim. The task of resolving the conflicting accounts would
fall to the finder of fact – judge or jury – who could decide
how much weight to assign Jones’s testimony after
considering all relevant evidence, such as the distance
between the bedroom and the front door and the volume of
the alleged knock. Credibility determinations are not for the
district court, especially at the motion to dismiss stage, before
evidence is available and before the Defendants have even
denied the allegations against them. See Howard v. Office of
Chief Admin. Officer of U.S. House of Representatives, 720
F.3d 939, 950 (D.C. Cir. 2013) (explaining that, at the motion
to dismiss stage, the “court must assess the legal feasibility of
the complaint, but may not weigh the evidence that might be
offered to support it”) (internal quotations and brackets
omitted); Neitzke v. Williams, 490 U.S. 319, 327 (1989)
(“Rule 12(b)(6) does not countenance . . . dismissals based on
a judge’s disbelief of a complaint’s factual allegations”);
Iqbal, 556 U.S. at 678 (The “plausibility standard is not akin
to a probability requirement”) (internal quotations omitted). 4
4
  The Defendants also argue the knock-and-announce allegation
must be dismissed because it is asserted against the officers
collectively “for an alleged omission . . . by whoever was first to
enter the residence.” This is a frivolous argument. First, the order
of entry is a fact unknowable by the plaintiff before discovery.
Second, the defendants offer no authority holding or even
                                    7
     Jones’s allegation of unlawful seizure is also plausible.
Maybe all of the items in the 30 or more seized boxes fell
within the scope of the search warrant, specified in
Attachment A, Doc. No. 619-6 in Jones, 05-cr-386 (May 22,
2012). Maybe some or all of the items did not. The district
court will ultimately make that determination. Cf. United
States v. Geraldo, 271 F.3d 1112, 1118 (D.C. Cir. 2001). But
Rule 8, which provides a complainant must make “a short and
plain statement of the claim showing that the pleader is
entitled to relief,” did not require Jones, before discovery, to
identify each seized item and document and to show that each
fell outside the scope of the warrant.

                    B. Statute of Limitations

     There is no federal limitations period or tolling rule for
actions brought under § 1983, so 42 U.S.C. § 1988, a
companion statute that governs the rules of decision
applicable to civil rights claims, directs federal courts to look
to state law to fill the gap. See Wilson v. Garcia, 471 U.S.
261, 266-68 (1985); see also Hardin v. Straub, 490 U.S. 536,
539 (1989) (applying state rule tolling the limitations period
for inmates in a § 1983 action); Earle v. District of Columbia,
707 F.3d 299, 305 (D.C. Cir. 2012) (applying the D.C. statute
of limitations in a § 1983 action brought in D.C.); Doe v. U.S.
Dep’t of Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985)
(applying the D.C. statute of limitations in a Bivens action
brought in D.C.). The Defendants argue we should apply
Maryland’s three-year statute of limitations because it is the

suggesting that only the first officer to enter is liable for a knock-
and-announce violation, nor any justification for deviating from the
rule that “a jointly committed . . . tort may result in joint liability on
the part of the tort-feasors.” Knell v. Feltman, 174 F.2d 662, 663
n.1 (D.C. Cir. 1949).
                                  8
state in which the search took place. The search occurred in
2005, so the limitations period would have lapsed by the time
Jones filed his complaint in 2012.

     We do not apply Maryland law in this case, however.
Where federal law is silent, § 1988 provides, “the common
law, as modified and changed by the constitution and statutes
of the State wherein the court having jurisdiction . . . is held”
shall govern unless application of the state law would be
inconsistent with the laws of the United States. (emphasis
added). See also Burnett v. Grattan, 468 U.S. 42, 47-48
(1984) (explaining that, if no federal rule governs a claim
asserted under the Civil Rights Acts, then courts are to
consider application of the laws “of the forum state”).
Because the District of Columbia is the forum “state” in this
case, pursuant to § 1988, we look to District law for the
applicable statute of limitations.

     Quoting Wallace v. Kato, 549 U.S. 384 (2007), the
Defendants argue we must look to “the law of the State in
which the cause of action arose,” but that dictum does not
direct us to a different result. Id. at 387. In Wallace, the
Supreme Court held that federal law, rather than state law,
determines the accrual date of a § 1983 cause of action; which
state’s statute of limitations would have applied was not
disputed. 5 In fact, until 2009 no court had ever considered
5
  Indeed, even if Wallace were controlling, it would still not be
clear that the phrase “the State in which the cause of action arose”
refers in this case to Maryland rather than to D.C. Other courts
have cited Wallace for the proposition that “[c]laims under § 1983
are governed by the forum state’s statute of limitations,” e.g., Myers
v. Koopman, 738 F.3d 1190, 1194 n.2 (10th Cir. 2013), an
interpretation probably attributable to the courts’ imprecise usage of
the phrase in § 1983 cases, cf. Haggard v. Stevens, 683 F.3d 714,
719 (6th Cir. 2012) (Clay, J., concurring).
                                 9
“which statute of limitations is appropriate when the
constitutional tort occurred in a state other than the forum of
the litigation,” Malone v. Corrections Corp. of America, 553
F.3d 540, 542 (7th Cir. 2009). In Malone the court imported
the forum state’s choice-of-law rules to determine which
statute of limitations the forum state would apply. 553 F.3d
at 542. This approach makes good sense because a state’s
“statute[] of limitations cannot be divorced from the [other]
associated rules that determine how long a plaintiff has to
commence suit.” Id. at 542. Consulting the “D.C. choice-of-
law rules, we see that they treat statutes of limitations as
procedural, and therefore [ordinarily] mandate application of
the District’s own statute of limitations.” A.I. Trade Fin., Inc.
v. Petra Int’l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir.
1995).

     Like Maryland, D.C. has a three-year statute of
limitations for personal injury actions such as this. See Earle,
707 F.3d at 305 (citing D.C. Code § 12-301(8)). Unlike
Maryland, however, the District tolls the statute of limitations
for causes of action that accrue while a plaintiff is imprisoned,
beginning at the time of his or her arrest. District of
Columbia v. Tinker, 691 A.2d 57, 64 (D.C. 1997) (citing D.C.
Code § 12-302(a)(3)). Tolling stops when the plaintiff is
released, but Jones has been imprisoned since his arrest in
2005. 6


6
  Contrary to our dissenting colleague’s contention, see Dissent at
10 n.5, the pursuit of a uniform limitations period is not a valid
reason to ignore the clear text of § 1988 and instead import a
federal limitations period. “[T]he ‘state-borrowing doctrine’ may
not be lightly abandoned,” Lampf, Pleva, Lipkind, Prupis &
Petigrow v. Gilbertson, 501 U.S. 350, 357 (1991), particularly in a
federal civil rights case, where the Supreme Court plainly envisions
that different state legislatures will reasonably implement different
                                10
     The Defendants nevertheless argue that tolling does not
apply because the alleged knock-and-announce violation
occurred immediately prior to Jones’s arrest. If the Council
of the District of Columbia did not require Jones to file his
lawsuit from his jail cell, however, then it surely did not
expect him to draft, file, and serve a complaint in the
moments between the officers’ entry into his home and his
arrest. In Rose v. Washington Times Co., 23 F.2d 993 (1928),
the D.C. Court of Appeals interpreted an earlier statute that
tolled a cause of action for libel during imprisonment. It
explained:

        There can be no doubt that the word
        imprisonment is used in this section in its plain,
        ordinary meaning. Imprisonment is the act of
        putting or confining a man in prison; the
        restraint of a man’s personal liberty; coercion
        exercised upon a person to prevent the free
        exercise of his powers of locomotion.

Id. at 994 (quoting Hyde v. Nelson, 229 S.W. 200, 201 (Mo.
1921)). From the moment the Defendants entered Jones’s
home, he was not free to leave. Although he had not yet been
handcuffed or given Miranda warnings, his liberty was
sufficiently restrained that he was ‘imprisoned’ for purposes
of § 12-302(a)(3). The statute of limitations therefore has not
yet begun to run on Jones’s § 1983 or Bivens 7 claims.

statutes of limitations and tolling rules, see Hardin, 490 U.S. at
543-44.
7
  Although our limitations analysis focuses upon the § 1983 claims,
the Bivens claims are governed by the same statute of limitations.
Bieneman v. City of Chi., 864 F.2d 463, 469 (7th Cir. 1988)
(“Actions under § 1983 and those under [Bivens] are identical save
for the replacement of a state actor (§ 1983) by a federal actor
                                 11
                      C. Issue Preclusion

     The Defendants argue Jones is collaterally estopped from
litigating the legality of the search and seizure because he
raised these issues during the criminal proceeding as part of
his motion to suppress. They also argue Jones’s claims are
barred by Heck v. Humphrey, in which the Supreme Court
held a § 1983 complaint must be dismissed if a favorable
judgment would necessarily impugn the validity of a prior
conviction, unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. 512 U.S.
477 (1994). We reject both arguments.

                     1. Collateral Estoppel

     Citing Allen v. McCurry, the Defendants contend Jones’s
claims are barred because they had already been resolved by
the district judge on Jones’s motion to suppress. See 449 U.S.
90, 105 (1980) (Section 1983 claim for unlawful search
barred by issue preclusion because the validity of the search
had already been resolved in denying the motion to suppress).
“[A]mong the most critical guarantees of fairness in applying
collateral estoppel,” however, “is the guarantee that the party
to be estopped had not only a full and fair opportunity but an
adequate incentive to litigate to the hilt the issues in
question.” Haring v. Prosise, 667 F.2d 1133, 1141 (4th Cir.
1981), affirmed 462 U.S. 306 (1983); see generally

(Bivens). No wonder the only . . . courts of appeals that have
addressed questions concerning limitations under Bivens have held
that the rules used for § 1983 suits will be applied in full force to
Bivens cases”); Sanchez v. United States, 49 F.3d 1329, 1330 (8th
Cir. 1995); Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991);
Chin v. Bowen, 833 F.2d 21, 23-34 (2d Cir. 1987); McSurley v.
Hutchison, 823 F.2d 1002, 1004-05 (6th Cir. 1987).
                               12
Restatement (Second) of Judgments (§§ 27-29 (1982)).
Unlike the defendant in McCurry, Jones had little incentive to
pursue further his motion to suppress because, whatever its
merits, the remedy for the alleged constitutional violations at
issue in this case probably would not have been suppression
of the evidence seized at his home. See Hudson, 547 U.S. at
593 (rejecting suppression as a remedy when the causal
connection between the discovery of the tainted evidence and
the constitutional violation – in that case, failure to knock and
announce – is remote). Collateral estoppel therefore does not
apply.

     Our dissenting colleague argues that Jones is barred from
alleging the time of entry was 4:45 AM because on the
motion to suppress, the district judge found the officers had
entered after 6:00 AM. There are three problems with that
argument. First, the Defendants never mention the factual
finding that so animates the Dissent; after spending much of
their brief arguing that the search as alleged would not have
been unlawful, the Defendants said only that, “[h]aving
litigated th[is] claim[] unsuccessfully in the criminal
proceeding as part of a motion to suppress, Jones cannot now
re-litigate [it] in a civil proceeding.” Defs.’ Br. 41. That will
not do. “We apply forfeiture to unarticulated [legal and]
evidentiary theories not only because judges are not like pigs,
hunting for truffles buried in briefs or the record, but also
because such a rule ensures fairness to both parties.” Estate
of Parsons v. Palestinian Auth., 651 F.3d 118, 137 (D.C. Cir.
2011) (internal citations and quotations omitted).

     Second, Jones had no more incentive to appeal that
finding than to appeal the conclusion that nighttime entry was
not unlawful. As we have already explained, the remedy for
the alleged violation likely would not have been suppression.
Furthermore, any purported incentive to appeal the
                                13
suppression ruling, as Jones points out, would have been
negated by Jones’s subsequent guilty plea, which rested at
least in part upon evidence that was not seized from his home.
See Reply Br. 25-26.

     Third, collateral estoppel is particularly inappropriate
because the factual finding was not necessary to the district
court’s decision denying the motion. See Trial Transcript at
4, Doc. No. 70 in Jones, 05-cr-386 (Feb. 19, 2013) (“I’ve
already ruled five times it’s legally irrelevant. And I still
stand by that. But to the extent I need to make findings of
fact, I find that this search was executed after 6”); see
generally San Remo Hotel, L.P. v. City & Cnty. of San
Francisco, 545 U.S. 323, 336 n.16 (2005) (explaining that
collateral estoppel applies only to “an issue of fact or law
necessary to [the court’s] judgment”) (emphasis added). 8

     Evanson v. United States, 84 F.3d 1452 (D.C. Cir. 1995),
aff’g 878 F. Supp. 1 (D.D.C. 1995), upon which the Dissent
(at 4-5) relies, is an unpublished summary affirmance that has
nothing to do with case at hand. The alleged constitutional
violations in Evanson were very different: they concerned
whether the officers’ entry was consensual and whether the

8
   We do not hold, as the Dissent claims, that neither of two
alternative bases for a holding can estop a party from re-litigating
an issue in a future action. We simply note that, where a district
court has explicitly characterized a factual finding as “legally
irrelevant,” it is fair to say that particular finding was not
“necessary” to the court’s judgment. Cf. Halpern v. Schwartz, 426
F.2d 102, 105 (2d Cir. 1970) (“It is well established that although
an issue was fully litigated and a finding on the issue was made in
the prior litigation, the prior judgment will not foreclose
reconsideration of the same issue if that issue was not necessary to
the rendering of the prior judgment, and hence was incidental,
collateral, or immaterial to that judgment”).
                               14
arrest was supported by probable cause. But even if the
allegations had been identical, Evanson would have had an
incentive to appeal because the Supreme Court had not yet
decided Hudson. Further, the district court in Evanson noted
multiple times that an issue must be “necessary” to a
judgment for estoppel to apply. 878 F. Supp. at 3. As we
have explained, that was not the case here.

                    2. Heck v. Humphrey

      Heck v. Humphrey is no bar to Jones’s claims. Jones’s
first conviction was vacated. Maynard, 615 F.3d at 549. His
current conviction rests upon his guilty plea, and “when a
defendant is convicted pursuant to his guilty plea rather than a
trial, the validity of that conviction cannot be affected by [his
proving] an alleged Fourth Amendment violation because the
conviction does not rest in any way on evidence that may
have been improperly seized.” Prosise, 462 U.S. at 321.
Further, because the remedy for the alleged violations likely
would not have been suppression, a favorable ruling in this
civil suit would not necessarily impugn Jones’s conviction
even if he had not pled guilty. See Heck, 512 U.S. at 487 n.7
(“Because of doctrines like . . . harmless error, . . . a § 1983
action, even if successful, would not necessarily imply that
the plaintiff’s conviction was unlawful”).

   D. Qualified Immunity for the Timing of the Search

     The district court dismissed Jones’s claim regarding the
execution of the search warrant at 4:45 AM on the ground that
the officers are entitled to qualified immunity, the doctrine
that “protects government officials from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan,
                              15
555 U.S. 223, 231 (2009) (internal quotation marks omitted).
Qualified immunity depends upon the answers to two
questions: (1) Did the officer’s conduct violate a
constitutional or statutory right? If so, (2) was that right
clearly established at the time of the violation? Saucier v.
Katz, 533 U.S. 194, 201 (2001). A right is “clearly
established” if precedent from a controlling authority or “a
robust consensus of cases of persuasive authority” put the
constitutional question beyond debate. Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011). In this case, the district court held
that there was no Fourth Amendment violation because the
“Fourth Amendment does not per se prohibit nighttime
searches,” 66 F. Supp. 3d at 246 (citing Youngbey v. March,
676 F.3d 1114, 1124 (D.C. Cir. 2012)), and that, in any event,
Jones “cites to no cases in the Supreme Court or [the D.C.]
Circuit clearly establishing that entry under the circumstances
alleged” here was unconstitutional, id.

     The district court erred in holding there was no
constitutional violation. Jones does not allege the timing of
the search was unlawful merely because it took place at night;
he alleges it was unlawful because it violated an express
limitation on the face of the warrant.

     The Fourth Amendment “guarantees . . . the absolute
right to be free from unreasonable searches and seizures.”
Bivens, 403 U.S. at 392. The search of a home is
presumptively unreasonable unless authorized by a warrant,
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006),
which must be issued by a neutral judicial officer, see
Johnson v. United States, 333 U.S. 10, 13-14 (1948). Unlike
rules of criminal procedure and other sub-constitutional
bodies of law, violations of which may be unlawful but are
not necessarily unconstitutional, see Virginia v. Moore, 553
U.S. 164, 176 (2008) (“[W]hile States are free to
                                  16
regulate . . . arrests however they desire, state restrictions do
not alter the Fourth Amendment’s protections”), compliance
with the limitations of a warrant is required by the
Constitution itself, Bivens, 403 U.S. at 394-95 n.7 (“[T]he
Fourth Amendment confines an officer executing a search
warrant strictly within the bounds set by the warrant”).

     In this case the magistrate, as clearly indicated on the
face of the warrant, affirmatively denied the Defendants
permission to search Jones’s house before 6:00 AM. The
plaintiff alleges the Defendants nonetheless executed the
warrant at 4:45 AM. Just as a warrant is “dead,” and a search
undertaken pursuant to that warrant invalid, after the
expiration date on the warrant, Sgro v. United States, 287 U.S.
206, 212 (1932), a warrant is not yet alive, and a search is
likewise invalid, if executed before the time authorized in the
warrant. If the Defendants executed the warrant when the
magistrate said they could not, then they exceeded the
authorization of the warrant and, accordingly, violated the
Fourth Amendment. 9

     In holding the alleged nighttime entry violated the Fourth
Amendment, we reject the Defendants’ argument that 21
U.S.C. § 879 overrode the time restrictions imposed by the
magistrate. That statute, which governs searches for evidence
of drug crimes, provides that a warrant “may be served at any

9
   Our dissenting colleague says that when a “state warrant
authorized only a daytime search but the officers executed the
warrant at night,” courts have held there is no Fourth Amendment
violation. Dissent at 14 n. 7 (emphasis added) (citations omitted).
That mischaracterizes the cases. In each one, the warrant itself was
silent as to timing; any time restrictions derived from a state statute
or rule of criminal procedure, which are not incorporated by the
Fourth Amendment.
                                17
time of the day or night if the judge or United States
magistrate judge issuing the warrant is satisfied that there is
probable cause to believe that grounds exist for the warrant
and for its service at such time.” Unlike Federal Rule of
Criminal Procedure 41, which governs most searches and
requires an officer to demonstrate “good cause” before a
magistrate can authorize a nighttime search, § 879 “requires
no special showing for a nighttime search” beyond probable
cause for the warrant itself. Gooding v. United States, 416
U.S. 430, 458 (1974). Although this and other courts have
held a warrant issued pursuant to § 879 that is silent as to time
may permissibly be executed at night, see, e.g., United States
v. Burch, 156 F.3d 1315, 1325 (D.C. Cir. 1998), nothing in
the text of § 879 suggests it limits a magistrate’s discretion to
place restrictions upon a search.

     Indeed, a statute purporting to restrict the power of a
court to define the limits of a reasonable search would raise a
serious constitutional question. Cf. Dickerson v. United
States, 530 U.S. 428, 437 (2000) (“Congress may not
legislatively supersede our decisions interpreting and applying
the Constitution”). 10 We need not resolve that question here,
however, because regardless whether the magistrate should
have permitted a nighttime search in this case, he did not.
The warrant requirement “provides the detached scrutiny of a
neutral magistrate, which is a more reliable safeguard against
improper searches than the hurried judgment of a law
enforcement officer engaged in the often competitive

10
   Our dissenting colleague contends that Rule 41(a)(2)(B) and
(e)(2) impose just such restrictions. They do not. The rules merely
prevent a magistrate from authorizing a search that fails to meet
certain minimum requirements; they do not purport to require a
magistrate to authorize a search he has otherwise deemed
unreasonable.
                              18
enterprise of ferreting out crime.” United States v. Leon, 468
U.S. 897, 913-14 (1984) (internal quotations omitted). If the
executing officers believed the daytime-only limitation was
an improvident limitation or, as in United States v. Katoa, 379
F.3d 1203 (10th Cir. 2004), a mere drafting error, then they
had other options, including telephoning the magistrate to
authorize nighttime service, as the officers did in Katoa. See
also United States v. Voustianiouk, 685 F.3d 206, 216 (2d Cir.
2012) (explaining that a search of a second-floor apartment
violated the Fourth Amendment where the warrant authorized
a search of the first-floor apartment only and the officers
“could have called a magistrate judge on the telephone” on
the morning of the search after discovering the suspect
resided on the second floor). Simply ignoring the timing
limitation was not among the choices lawfully available to the
officers in this case.

     Nevertheless, we agree with the district court that the
Defendants are entitled to qualified immunity, albeit for a
different reason: It was not clearly established in Maryland in
2005 that the Fourth Amendment prohibits the nighttime
execution of a daytime-only warrant. Although two of our
sister circuits had by then so held, see O’Rourke v. City of
Norman, 875 F.2d 1465 (10th Cir. 1989); United States v.
Merritt, 293 F.2d 742 (3d Cir. 1961), the Fourth Circuit,
within which this search occurred, did not come to the same
conclusion until after the search in this case. See Yanez-
Marquez v. Lynch, 789 F.3d 434, 466 (2015). Indeed, as the
Fourth Circuit noted in that case, an unpublished Fourth
Circuit opinion from 2009 had treated “a nighttime search
under the aegis of a daytime warrant as a mere Rule 41
violation, rather than as an unconstitutional search.” Id. at
467 (discussing United States v. Davis, 313 F. App’x 672).
To repeat, qualified immunity shields an officer from liability
unless he reasonably should have known his conduct would
                                 19
violate the law. See Pearson, 555 U.S. at 231. If our learned
colleagues on the Fourth Circuit believed as recently as 2009
that the nighttime execution of a daytime-only warrant is not a
constitutional violation, then the police officers who work in
that jurisdiction cannot be faulted for failing to appreciate in
2005 that their conduct was unconstitutional.

     Until 2009 the Supreme Court “required courts
considering qualified immunity claims to first address the
constitutional question, so as to promote ‘the law’s
elaboration from case to case.’” Camreta v. Greene, 563 U.S.
692, 707 (2011) (emphasis omitted) (quoting Saucier v. Katz,
553 U.S. 194, 201 (2001)). 11 Today, which part of the
qualified immunity analysis to address first is within the
“sound discretion” of the court. Pearson, 555 U.S. at 236.
Where “it is plain that a constitutional right is not clearly
established but far from obvious whether in fact there is such
a right,” it may make sense to avoid the constitutional
question. Id. at 237. This is not such a case, however. It
seems to us an unremarkable proposition that an officer must
respect a time limitation imposed by a magistrate and, indeed,
the three other circuits to consider the question reached the
same conclusion. In light of the Government’s argument to
the contrary, see Defs.’ Br. 36, we think it important to clarify
this point of law.
11
    Our resolution of the constitutional question, although not
necessary to the grant of qualified immunity, is “not mere dictum in
the ordinary sense.” Bunting v. Mellen, 541 U.S. 1019, 1023
(2004) (Scalia, J., dissenting from denial of certiorari). Such
rulings “have a significant future effect on the conduct of public
officials . . . and the policies of the government units to which they
belong. And more: they are rulings self-consciously designed to
produce this effect, by establishing controlling law and preventing
invocations of immunity in later cases.” Camreta, 563 U.S. at 704-
05 (internal quotations and citations omitted).
                               20

     Since Pearson, our court has often granted qualified
immunity without reaching the constitutional question, but
both the constitutional question and the answer are more clear
in this case than in any of those. Here we need only follow
the teaching of the Supreme Court, as have three other
circuits, in order to protect the public from a particular type of
unreasonable search. One of those circuits – the Fourth –
surrounds the District of Columbia on all sides, and officers
from Maryland and Virginia frequently cooperate with
officers from D.C. on investigations.             Resolving the
constitutional question here ensures that officers will take care
to abide by a magistrate’s limitations regardless where in the
Washington area the search is executed.

     Conservation of judicial resources, see Dissent at 11, is a
risible justification for avoiding a straightforward question
such as this, cf. Pearson, 555 U.S. at 236 (“there are cases in
which there would be little if any conservation of judicial
resources to be had by beginning and ending with a discussion
of the ‘clearly established’ prong”), especially in view of the
dramatic reduction in the caseload per judge of our court in
recent years. Nor is doubt about the actual time of entry a
relevant consideration in this case. That the facts of the case
are as yet unsettled is neither surprising nor unique; this
appeal is from the grant of a pre-answer motion to dismiss.
There is nothing improper about deciding a constitutional
question at this stage. Cf. al-Kidd, 563 U.S. at 734. Indeed,
we ordinarily decide questions of qualified immunity early in
order to avoid burdening officers with protracted litigation,
see Pearson, 555 U.S. at 232; under our dissenting
colleague’s approach, in contrast, we would never reach a
constitutional question as long as the defendant’s attorney
remembered to raise qualified immunity as a defense.
Although well-founded doubt about the veracity of a
                                 21
plaintiff’s factual allegations might steer us toward
constitutional avoidance in some circumstances (e.g., where
the plaintiff’s account of the facts on summary judgment is
“utterly discredited by the clear [video] evidence,” Lash v.
Lemke, 786 F.3d 1, 6 (D.C. Cir. 2015)), those circumstances
are not present here, where the Defendants have not submitted
contrary evidence nor even filed an answer denying Jones’s
allegations. 12

     As the Supreme Court has warned, perpetually
addressing only the clearly-established question “may
frustrate the development of constitutional precedent and the
promotion of law-abiding behavior.” Camreta, 563 U.S. at
706 (internal quotations omitted). We see no need to avoid
the constitutional question here.

                         III. Conclusion

     We affirm the district court’s holding that the Defendants
have qualified immunity for the timing of the search, reverse
its dismissal of Jones’s claims for unlawful seizure and no-
knock entry, and remand this matter for further proceedings
consistent with this opinion.

                                                 So ordered.




12
  Had they wanted to do so at this early stage of the litigation, the
defendants could have submitted affidavits denying that they
entered the plaintiff’s home before 6:00 a.m. Rule 12(d) allows a
party to convert a motion to dismiss into one for summary
judgment by submitting extrinsic materials with the motion. See
also Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011).
Appendix A
    RANDOLPH, Senior Circuit Judge, dissenting in part and
concurring in the judgment in part:

      There are two basic and related reasons why I believe the
majority errs in deciding that the defendants violated the Fourth
Amendment when they allegedly executed a daytime search
warrant at night. The first reason should have been conclusive.
It is that collateral estoppel bars Jones’ claim about the timing
of the search. In the criminal proceedings leading to Jones’
conviction that very issue was decided against him, not once but
several times, because his allegation turned out to be false. The
second reason is that the majority’s determination to reach out
and decide this constitutional issue despite that finding and
despite the defendants’ immunity from suit is an abuse of
discretion.

     All that is before us in this case is Jones’ complaint, the
fourth civil suit he has filed during his imprisonment on a plea
of guilty for drug dealing. His latest action alleges that more
than a decade ago officers began searching his home at 4:45
a.m. although the search warrant authorized a search only
between 6:00 a.m. and 10:00 p.m. and that the defendant officers
therefore violated the Fourth Amendment to the Constitution.

     In order to reach this constitutional issue, the majority
opinion decides two new and significant points of law for this
circuit: that alternative holdings do not give rise to collateral
estoppel and that suppression is not the proper remedy for
violation of a warrant’s timing requirement. Jones raised neither
of these issues in this court or in the district court, and yet the
majority opinion decides both of them in order to reach a
constitutional question that is irrelevant to the disposition of this
case because of the defendants’ immunity.

    In coming to these conclusions, the majority opinion also
assumes the truth of Jones’ allegation. Yet in the criminal
proceedings against Jones, the district court made an evidentiary
                                  2

finding that Jones’ allegation was false and that the search
actually occurred after 6:00 a.m.

     The search of Jones’ home was part of a coordinated take-
down on the morning of October 24, 2005, in which FBI, Metro
Police, and other officers simultaneously searched several
different properties. More than half a dozen officers – including
defendants in this case – testified that at 6:00 a.m., the FBI
command center sent out the signal for all teams to execute their
warrants. At Jones’ Moore Street house, Agent Steven Naugle
– a defendant in this case – was team leader. Agent Naugle
testified that the call “went out over the radio . . . at 6:00 a.m. to
execute our search warrants.” Trial Transcript at 41, No. 1:05-
cr-00386-ESH (Feb. 11, 2013), ECF No. 739. The team, which
had been parked at a nearby shopping center, drove to Jones’
house and entered at approximately 6:15 a.m. Id. at 41, 75.

     In his initial motion to suppress, Jones did not mention the
timing of the search. He later filed two “Motion[s] for
Reconsideration” of the motion to suppress, in which he raised
the issue. Attached to his motions were affidavits from his wife
and son claiming that agents had entered his home at 4:45 a.m.
See Motion for Reconsideration, No. 1:05-cr-00386-ESH
(D.D.C. May 22, 2012), ECF No. 619-3, No. 619-4, No. 619-5;
Motion to Reconsider at 34-44, No. 1:05-cr-00386-ESH (D.D.C.
Feb. 19, 2013), ECF No. 688. Judge Huvelle denied the first
motion in an oral bench ruling, stating that even if Jones had a
right to have the warrant executed at 6:00 a.m. rather than 4:45
a.m., “the remedy would not be suppression.” Trial Transcript
at 11, No. 1:05-cr-00386-ESH (D.D.C. Aug. 10, 2012), ECF No.
670-5. She denied the second motion in a minute order, which
stated that the motion was “denied for the reasons stated on the
record in open[] court.” Minute Entry, No. 1:05-cr-00386-ESH
(D.D.C. Feb. 19, 2013).
                                3

     In giving those reasons, Judge Huvelle made a specific
factual finding that the search occurred after 6:00 a.m. Trial
Transcript at 3–4, No. 1:05-cr-00386-ESH (D.D.C. Feb. 19,
2013), ECF No. 780. Here is what she said from the bench:

        I credit the testimony of Naugle and the many,
    many, many other police officers, all of whom got the
    go-ahead to start at 6 a.m.

        I’m telling you that police do not – they go at the
    same time. It will undercut the whole purpose of
    executing a search warrant if half of them go at one
    time and half go at another time.

         The testimony is absolutely consistent. We heard
    from Naugle that he went in to the Moore Street house
    at 6 a.m. or shortly thereafter, consistent with
    Magistrate Judge Charles Day’s order. And we find
    that – listening to the testimony we know from the
    people who executed the warrant at the co-conspirator’s
    house from Detective Webb, he testified; Ashby
    testified; somebody testified with respect to Demetrius
    Johnson’s. Ms. Counts, special agent now retired
    Counts, testified; Norma Horne testified; and Detective
    Kirschner [sic] testified.

         There’s consistent testimony that they went in at
    6:00 when they got the word. Or after 6:00. So I find
    no basis to credit Ms. Jones’s testimony. I find the
    police officers to be totally consistent. I’ve already
    ruled five times it’s legally irrelevant. And I still stand
    by that. But to the extent I need to make findings of
    fact, I find that this search was executed after 6 when
    command center gave the go-ahead to all these officers
    to take down this conspiracy.
                                   4

    The warrant itself, now reproduced in its entirety as an
addendum to the majority opinion, corroborates Judge Huvelle’s
finding. On page two of the warrant, under the heading “DATE
AND TIME EXECUTED,” is the notation “10/24/05 6:15 AM.”
This statement deserves great weight not only because it was
made contemporaneously but also because it was made in
compliance with Rule 41(f)(1)(A) of the Federal Rules of
Criminal Procedure1: “The officer executing the warrant must
enter on it the exact date and time it was executed.”

    Under Allen v. McCurry, 449 U.S. 90, 94 (1980), rulings on
motions to suppress have preclusive effect in later civil suits.
See McClam v. Barry, 697 F.2d 366, 371 n.3 (D.C. Cir. 1983)
(“[C]ollateral estoppel should apply in Bivens-type actions as it
applies in section 1983 actions.”), overruled on other grounds
by Brown v. United States, 742 F.2d 1498 (D.C. Cir. 1984).
Jones has already litigated the issue about the timing of the
search, and he has lost.

     This collateral estoppel issue has already been decided in
this circuit as a matter of federal law.2 Evanson v. United States,


     1
       On page 17 of the majority opinion there is, as an aside, the
statement that a statute restricting a federal court’s definition of the
limits of a reasonable search “would raise a serious constitutional
question.” This ill-considered dictum is troublesome. Rule
41(a)(2)(B) and (e)(2), for example, restrict the discretion of
magistrates to determine the limits of a reasonable search, with the
federal rules defining night and day without regard to seasons or time
zones. The notion that those provisions might be unconstitutional
strikes me as far-fetched.
     2
       Many other courts have come to the same conclusion on state
law grounds. See United States ex rel. DiGiangiemo v. Regan, 528 F.2d
1262, 1265 (2d Cir. 1975) (Friendly, J.); Donovan v. Thames, 105 F.3d
291, 298 (6th Cir. 1997); Simmons v. O’Brien, 77 F.3d 1093, 1096–97
                                  5

84 F.3d 1452 (D.C. Cir. 1995), aff’g 878 F. Supp. 1 (D.D.C.
1995), was a civil damage action like this case alleging a
violation of the Fourth Amendment. The plaintiff in Evanson
had been convicted of gun crimes in federal court. He declined
to appeal his conviction and then filed a Bivens suit against
several of the federal officers who took part in the search. Judge
Friedman ruled that the plaintiff was collaterally estopped from
contesting the constitutionality of the search because “[a]t the
suppression hearing [in federal court in his criminal case], at
which he was represented by counsel, plaintiff had a full and fair
opportunity to litigate the Fourth Amendment issues he
presented.” Id. at 3. We summarily affirmed, finding that “[t]he
merits . . . are so clear as to warrant summary action.” 84 F.3d
1452; see also Paolone v. Mueller, No. CIV A. 05-2300 (JDB),
2006 WL 2346448, at *6 (D.D.C. Aug. 11, 2006).

      The majority opinion claims that Evanson is distinguishable
because the issue there was “necessary” to the judgment. Maj.
Op. at 14. In the majority’s view, Judge Huvelle’s factual
finding about the timing of the search was not necessary to
resolve the motion to suppress because it was an alternative
ruling. But the traditional rule, and the one most courts of
appeals follow, is that “an alternative ground upon which a
decision is based should be regarded as ‘necessary’ for purposes
of . . . res judicata or collateral estoppel . . ..” Winters v. Lavine,
574 F.2d 46, 67 (2d Cir.1978); see also Jean Alexander
Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 254 (3d Cir.
2006); Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d



(8th Cir. 1996); Ayers v. City of Richmond, 895 F.2d 1267, 1271 (9th
Cir. 1990); Rowley v. Morant, 631 F. App’x 651, 654 (10th Cir. 2015);
but see Heath v. Cast, 813 F.2d 254, 258 (9th Cir. 1987). See generally
Diane M. Allen, Res Judicata or Collateral Estoppel Effect of Prior
Criminal Proceedings, 68 A.L.R. FED. 861 (1984) (collecting cases).
                                6

1396, 1402 (7th Cir. 1987); In re Westgate-California Corp.,
642 F.2d 1174, 1176–77 (9th Cir. 1981); Deweese v. Town of
Palm Beach, 688 F.2d 731, 734 (11th Cir.1982); RESTATEMENT
(FIRST) OF JUDGMENTS § 68 comment n (1942).

     The point of the “necessarily decided” prong of the
collateral estoppel inquiry is that a finding should have
preclusive effect only when the court making it took “sufficient
care in determining [the] issue” and when “appellate review is
available to ensure the quality of the initial decision.” 18
CHARLES ALLEN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 4421 (2d ed. 2002). Both of those
requirements are met here. Judge Huvelle carefully considered
the question – indeed, considered it several times – and her
findings against Jones were detailed, well-reasoned, solid and
irrefutable. No wonder that Jones decided not to appeal her
ruling even though he had several chances. He could have done
so either by not pleading guilty or by entering a conditional
guilty plea that would have allowed him to appeal Judge
Huvelle’s ruling against him. See FED. R. CRIM. P. 11(a)(2).
Jones undoubtedly knew this. He had already taken several
appeals on other matters, one of which resulted in the Supreme
Court reversing his conviction. Jones had a “full and fair
opportunity” to litigate and appeal the timing of the search in his
suppression motion. Allen, 449 U.S. at 95. It was his choice to
plead guilty and cut that opportunity short, just as it was the
plaintiff’s choice in Evanson not to appeal his conviction.

    Jones never argued that Judge Huvelle’s factual finding was
not necessary to resolving his motion to suppress. But the
majority raises the argument anyway, and then decides with no
analysis that alternative holdings do not have preclusive effect.
I would not make new law based on arguments that the plaintiff
never made, especially if that ruling conflicted with the
decisions of other circuits.
                                    7

     Nor is this the only issue on which the majority invokes
arguments that Jones never made. The opinion also states that
collateral estoppel does not apply because Jones had no
incentive to appeal Judge Huvelle’s ruling. Why not? Because
even if Jones won on appeal, the remedy “probably would not
have been suppression.” Maj. Op. at 12. Notice that this is an
assertion about what Jones and his attorney were thinking at the
time. And how does the majority gain this insight? Jones never
even alleged, let alone argued, in his brief or in his reply brief,
that he thought a victory on appeal would not have resulted in
suppression3. The majority has simply made up this version of
Jones’ trial strategy, and has used it as the basis for making new
law on an issue that was never presented in this case.




     3
       One might also wonder how the majority can be so sure that
suppression would not have resulted if the search actually began
before 6 a.m. The majority opinion cites three circuit court decisions
holding that executing a daytime warrant at night violated the Fourth
Amendment. See Maj. Op. at 18 (citing O’Rourke v. City of Norman,
875 F.2d 1465 (10th Cir. 1989); United States v. Merritt, 293 F.2d 742
(3d Cir. 1961); Yanez-Marquez v. Lynch, 789 F.3d 434 (4th Cir.
2015)). Of these three cases, one – O’Rourke – did not even deal with
suppression of evidence; like this case, it was an action for damages.
The two other cases recognized that suppression was a proper remedy.
In Merritt, the Third Circuit case, the court held that the district court
should have suppressed the evidence. In Yanez-Marquez the Fourth
Circuit held that suppression was available as a remedy if the
constitutional violation was “egregious.” 789 F.3d at 467–69. (This
was a civil deportation case, not a criminal proceeding, and the Fourth
Circuit determined that under INS v. Lopez-Mendoza, 468 U.S. 1032
(1984), the exclusionary rule therefore could be invoked only for
egregious constitutional transgressions. 789 F.3d at 447–51.). The
majority’s decision that suppression is not available in such cases may
therefore put us in conflict with the Fourth Circuit.
                                  8

     Ironically, even though it makes new law on two issues that
Jones never raised, the majority opinion tries to avoid the
preclusive effect of Judge Huvelle’s factual findings with the
astonishing assertion that the defendants have forfeited the
argument. Maj. Op. at 12. The assertion is astonishing because
the defendants clearly and forcefully made the argument, both
here and in the district court. More than that, Jones – in his
reply brief – responded to their argument. Here is a sample
from the defendants’ brief: “Jones previously litigated . . . the
timing of the search in his criminal proceeding . . .. Having
already litigated these claims unsuccessfully in the criminal
proceeding as part of a motion to suppress, Jones cannot now re-
litigate them in a civil proceeding under Bivens or section
1983.” Appellees’ Brief 41. In reply, Jones acknowledged that
Judge Huvelle found “that the search occurred within the
warrant’s terms. Tr. of Proceedings Held Feb. 19, 2013, ECF
780 at 4.” Jones Reply Brief 24. Jones’ citation is to the very
portion of Judge Huvelle’s ruling I quoted above.

     Now to the arguments Jones actually made. In attempting
to ward off collateral estoppel, Jones’ only claim is that after he
pled guilty, he lacked an “adequate incentive to litigate” or
appeal those issues. Appellant Reply Br. 25. For that
proposition he cites Haring v. Prosise, 462 U.S. 306 (1983), but
the portion of Haring he cites is not a holding. It is instead a
summary of the holding of the lower court.4 462 U.S. at 311.
(The majority opinion repeats Jones’ mistake. Maj. Op. at
11–12). Additionally, whatever incentive Jones had was


     4
       The substance of Haring does not help him either. That case
held only that criminal defendants are not estopped from contesting
issues that they could have, but did not, raise in a motion to suppress
during their criminal proceedings. 462 U.S. at 318. Haring did not
address what happens when the defendant does raise the issue in a
motion to suppress and the court rules against him.
                                 9

obviously enough – he repeatedly litigated the issue before the
district court in the criminal case, even after the court told him to
stop. Trial Transcript at 5, No. 1:05-cr-00386-ESH (D.D.C. Aug.
10, 2012), ECF No. 670-5 (“[E]very one of [the motions] I ruled
on before. I am not going to reverse myself. They are the law of
the case.”); Trial Transcript at 3–4, No. 1:05-cr-00386-ESH (Feb.
19, 2013), ECF No. 780 (“I’ve already ruled five times . . ..”).

     Jones also seeks to derive this requirement of an “adequate
incentive to litigate” from the broader principle that courts
should not estop defendants if doing so would “work a basic
unfairness.” Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C.
Cir. 2007). Bringing “fairness” into the mix does not help him.
He has already been involved in four criminal trials and several
civil complaints, and he has raised this issue multiple times. He
has managed to spin this single, baseless allegation into a large
expenditure of judicial and attorney resources. Jones had his
day in court, in fact more than a day, and there is nothing unfair
in denying him still another.

    Jones cites three cases in which he claims criminal
defendants were not estopped in “analogous circumstances”
because they lacked adequate incentive to litigate or appeal
issues decided in a criminal case. Talarico v. Dunlap, 685
N.E.2d 325, 332 (Ill. 1997); Johnson v. Watkins, 101 F.3d 792,
796 (2d Cir. 1996); United States v. Levasseur, 699 F. Supp.
965, 981 (D. Mass.1988), rev’d in part on other grounds, 846
F.2d 786 (1st Cir. 1988). The first case did not involve a motion
to suppress. Talarico, 177 Ill.2d at 196. And in the other two
cases, the defendants could not appeal because they had either
been acquitted or granted a mistrial, not because they had pled
guilty. Johnson, 101 F.3d at 796; Levasseur, 699 F. Supp. at
971; compare Jenkins v. City of New York, 478 F.3d 76, 91–92
(2d Cir. 2007); Sornberger v. City of Knoxville, 434 F.3d 1006,
1020–23 (7th Cir. 2006); Dixon v. Richer, 922 F.2d 1456, 1459
                                    10

(10th Cir. 1991). That is a crucial difference. When a defendant
is acquitted, neither he nor the government can appeal the
decision. See Martinez v. Hooker, 601 F. App’x 644, 648–49
(10th Cir. 2015). In contrast, here Jones had the opportunity to
go to trial and appeal if he was convicted; he simply decided he
would rather plead guilty.

    The short of the matter is that the Fourth Amendment issue
regarding the timing of the search is not presented in this case
and the majority opinion erred in deciding that issue.5


     5
       I also have doubts about the majority’s analysis of the statute of
limitations question. There are twelve defendants in this case. Eleven
of them are or were FBI agents. The action against them rests not on a
federal statute but, under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), directly on the
Fourth Amendment. The majority opinion borrows the limitations
period of the District of Columbia. Although the search, and thus the
cause of action, arose in Maryland, the majority rejects as “dictum”
Justice Scalia’s statement for the Court in Wallace v. Kato, 549 U.S.
384, 387 (2007), that in § 1983 actions the limitation statute of the state
in which the cause of action arose controls. Maj. Op. at 8.

      But there is now an analogous federal limitations statute – 28
U.S.C. § 1658, which provides a four year period without any tolling
provision like the District of Columbia’s. (Section1658 applies only by
analogy because it governs causes of action under statutes enacted after
December 1, 1990.) The Supreme Court has recognized that in the
interest of uniformity and in light of the potential multi-state geographic
nature of some federal actions, the courts should adopt an analogous
federal limitations period rather than a state law, which itself would
apply only by analogy. See Lampf, Pleva, Lipkind, Prupis & Petigrow
v. Gilbertson, 501 U.S. 350, 357 (1991); 19 CHARLES A. WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 4519 (2d
ed.).
                                  11

     Even if Judge Huvelle’s rulings did not preclude Jones from
raising the same issues in a civil lawsuit, there is no good reason
to decide whether the search in this case violated the Fourth
Amendment. I would hold that because the officers did not
violate a clearly established right they had qualified immunity
from Jones’ suit and be done with it. In Pearson v. Callahan,
555 U.S. 223 (2009), the Supreme Court reversed its decision in
Saucier v. Katz, 533 U.S. 194 (2001), and held that although
courts may decide constitutional questions in qualified immunity
cases, it is often unwise to expend “scarce judicial resources on
difficult questions that have no effect on the outcome . . ..” 555
U.S. at 236–37.

     Ever since Pearson, this court has developed not a page, but
a volume of history following the Supreme Court’s decision. In
these cases, we have almost invariably declined to decide
constitutional questions in qualified immunity cases when it was
unnecessary to do so. The majority has made no attempt to
distinguish the cases embodying our established practice. See
Lash v. Lemke, 786 F.3d 1, 5 (D.C. Cir. 2015); Fenwick v.


     The majority objects that this is not “a valid reason to ignore the
clear text of § 1988.” Maj. Op. at 9 n.6. But the “clear text” of § 1988
refers to “the common law, as modified and changed by the constitution
and statutes of the State” where the court sits. 42 U.S.C. § 1988(a)
(emphasis added). It makes no mention of the District of Columbia.
The Supreme Court has held that similar – indeed, even broader –
language originally in 42 U.S.C. § 1983 did not apply to the District of
Columbia. See District of Columbia v. Carter, 409 U.S. 418, 432
(1973). In response to that case, Congress amended § 1983 to cover the
District of Columbia. See Pub. L. No. 96–170, 93 Stat. 1284 (1979).
Congress has never made such a change to § 1988.

     The problem is that the defendants did not make this argument or
anything like it.
                               12

Pudimott, 778 F.3d 133, 137 (D.C. Cir. 2015); Dukore v.
District of Columbia, 799 F.3d 1137, 1144 (D.C. Cir. 2015); Fox
v. District of Columbia, 794 F.3d 25, 29 (D.C. Cir. 2015);
Bamdad v. DEA, 617 F. App’x 7, 8 (D.C. Cir. 2015); Doe v.
District of Columbia, 796 F.3d 96, 105 (D.C. Cir. 2015); Mpoy
v. Rhee, 758 F.3d 285, 295 (D.C. Cir. 2014); Atherton v. D.C.
Office of Mayor, 706 F.3d 512, 515 (D.C. Cir. 2013); Johnson
v. District of Columbia, 734 F.3d 1194, 1202 (D.C. Cir. 2013);
Taylor v. Reilly, 685 F.3d 1110, 1113 (D.C. Cir. 2012); Bame v.
Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011), as amended (Mar.
29, 2011); Jones v. Horne, 634 F.3d 588, 597, 599 (D.C. Cir.
2011); Ali v. Rumsfeld, 649 F.3d 762, 773 (D.C. Cir. 2011);
Rasul v. Myers, 563 F.3d 527, 530 (D.C. Cir. 2009). It is no
answer to say that this is a matter within the court’s discretion.
In the words of Chief Justice Marshall, “This is true. But a
motion to [the court’s] discretion is a motion, not to its
inclination, but to its judgment; and its judgment is to be guided
by sound legal principles.” United States v. Burr, 25 F. Cas. 30,
35 (C.C.D. Va. 1807). The nearly uniform practice of this court
has established such sound legal principles, and the majority has
offered no reason to depart from them.

     I repeat that we are deciding this case on a complaint alone.
The defendant officers have yet to file their answer to the
complaint. As the Supreme Court recognized in Pearson, courts
should not proceed to a constitutional question if the answer
depends on undeveloped facts. 555 U.S. at 239. Still less
should a court decide a constitutional question when developed
facts show that the question is not presented. The evidence in
the criminal proceedings proved that the search of Jones’
premises eleven years ago complied with the warrant’s timing
requirement. Compare Bradley v. Reno, 749 F.3d 553, 558 (6th
Cir. 2014) (“[I]n gauging the reasonableness of an officer’s acts,
a . . . court should of course consider what a . . . trial court
thought of them.”).
                                   13

     Judge Leval has explained that when a case can easily be
decided on the “clearly established” prong alone, “neither the
judge nor the defendant has any practical interest in the
theoretical question of constitutionality. Both know it can have
no effect on the inevitable dismissal of the case.” Pierre N.
Leval, Judging Under the Constitution: Dicta About Dicta, 81
N.Y.U. L. REV. 1249, 1278 (2006); see also Pearson, 555 U.S.
at 234, 239–40 (discussing Judge Leval’s article). The
defendants in this case have won a dismissal on this Fourth
Amendment issue; they have no reason to seek rehearing en
banc or certiorari in the Supreme Court on that issue. See Lyons
v. City of Xenia, 417 F.3d 565, 582 (6th Cir. 2005) (Sutton, J.,
concurring).6

   The answer to the constitutional question here is by no
means certain7. And it is hardly pressing. The majority cites not

     6
      Given our unanimous ruling that the defendants have qualified
immunity, we could not send the case back to the district court for still
another evidentiary hearing on the timing question, a question that no
longer affects the defendants’ liability.
     7
       In crossing out the day or night box on the warrant, the issuing
magistrate in this case may not have realized that rather than Rule
41(e)(2) & (a)(2), the timing authority for searches in drug cases is 21
U.S.C. § 879. In the Fourth Circuit at least, no special showing is
needed in a drug case to justify a nighttime search rather than a search
during the day. United States v. Rizzi, 434 F.3d 669, 674 (4th Cir.
2006), so holds: “At bottom, we hold that when a search warrant
involves violation of drug crimes, the warrant can be served day or
night so long as the warrant itself is supported by probable cause.”

     The warrant here was supported by probable cause and so under
Rizzi the question is not the simple one about whether a nighttime
search pursuant to a daytime warrant violates the Fourth Amendment.
The question is rather more involved. One way to frame the question
is whether what occurred here was just a ministerial error on the part
                                  14

a single reported case in this jurisdiction in which officers,
federal or local, executed a daytime warrant at night. And this
is not such a case, in light of Judge Huvelle’s findings and the
evidence supporting her findings.

     The majority opinion concludes on this note: “Although
well-founded doubt about the veracity of a plaintiff’s factual
allegations might steer us toward constitutional avoidance . . .
the Defendants have not submitted contrary evidence nor even
filed an answer denying Jones’s allegations.” Maj. Op. at 20-
21.

     I am tempted to place an exclamation point, or maybe two
or three, at the end of that quotation. Instead I will insert several
here: “well-founded doubt,” “not submitted contrary


of the magistrate that the officers could disregard given § 879 (see
Judge Friendly’s opinion in Ravich cited below).

     I have found no cases directly on point. But there are some
analogous federal decisions involving searches pursuant to state court
warrants. In these cases the state warrant authorized only a daytime
search but the officers executed the warrant at night. United States v.
Ravich, 421 F.2d 1196 (2d Cir. 1970) (Friendly, J.), is such a case.
Judge Friendly held for the court that the search at night was the
equivalent of a harmless error, not a Fourth Amendment violation. Id.
at 1202. United States v. Williams, 570 F. App’x 137 (3d Cir. 2014),
is a more recent example. There the state court warrant authorized
only a daytime search but the officers executed it at night. Judge
Scirica, writing for the court, held that the search did not violate the
Fourth Amendment. Id. at 141–42. See also United States v. Keene,
915 F.2d 1164, 1168 (8th Cir. 1990) (relying on § 879); Sibrian v. San
Bernardino County, 526 F. App’x 752, 753 (9th Cir. 2013) (holding
that police officers’ violation of state law prohibiting execution of
search warrants at night did not violate the Fourth Amendment); see
generally Claudia G. Catalano, Propriety of Execution of Search
Warrant at Nighttime, 41 A.L.R. 5th 171 (1996).
                                 15

evidence”!!!! Judge Huvelle pointed out – made a factual
finding – that the officers, now defendants in Jones’ case,
testified under oath that they entered Jones’ home after 6:00 a.m.
and that they were telling the truth. That strikes me as a “well-
founded” denial of Jones’ “factual allegations.” All the
evidence, the overwhelming evidence, supported Judge
Huvelle’s findings. The defendants testified that Jones’ claim
that they entered at 4:45 a.m. was a lie. FBI Agent Naugle, one
of the defendants in this civil case, made a contemporaneous
entry on the warrant stating that the entry occurred at 6:15 a.m.
And the defendants, in their brief in this court, maintained that
Judge Huvelle’s findings precluded Jones from claiming to the
contrary in his civil suit against the officers who helped put him
away. As for not filing an answer, the whole point of qualified
immunity is that officers have “immunity from suit rather than
a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). Such cases should be resolved “at the earliest
possible stage in litigation,” even if that is before defendants file
their answer. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per
curiam). “Not submitted contrary evidence,” “well-founded
doubt.” Whatever case the majority is writing about, it is not
this one.
