Christopher Covey v. Assessor of Ohio County , 777 F.3d 186 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1227
CHRISTOPHER J. COVEY; LELA G. COVEY,
Plaintiffs - Appellants,
v.
ASSESSOR OF OHIO COUNTY; KATHIE HOFFMAN, Head Assessor; ROY
CREWS, Field Deputy; UNKNOWN ASSESSOR; OHIO COUNTY SHERIFF;
PATRICK BUTLER, Sheriff; ALEX ESPEJO, Corporal; RON WHITE,
Deputy; NELSON CROFT, Lieutenant; NICHOLE SEIFERT, Officer;
HNK, Unknown Officer; DLG, Unknown Officer; DEPARTMENT OF
JUSTICE - DEA; OHIO VALLEY DRUG TASK FORCE; OHIO COUNTY
ANIMAL SHELTER; DOUG MCCROSKY, Supervisor; UNKNOWN DOG
WARDENS (2); UNITED STATES OF AMERICA; ROBERT L. MANCHAS,
S.A,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cv-00147-FPS-JES)
Argued: October 28, 2014 Decided: January 26, 2015
Before GREGORY, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Floyd wrote
the opinion, in which Judge Gregory and Judge Thacker joined.
ARGUED: Sean Eric Andrussier, DUKE UNIVERSITY SCHOOL OF LAW,
Durham, North Carolina, for Appellants. Thomas E. Buck, BAILEY
& WYANT, PLLC, Wheeling, West Virginia; Edward Himmelfarb,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Lee
Murray Hall, JENKINS FENSTERMAKER, PLLC, Huntington, West
Virginia, for Appellees. ON BRIEF: Shifali Baliga, Nicholas S.
Brod, Erika M. Hyde, Students, DUKE UNIVERSITY SCHOOL OF LAW,
Durham, North Carolina, for Appellants. Stuart F. Delery,
Assistant Attorney General, William J. Ihlenfeld, II, United
States Attorney, Mark B. Stern, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees United
States of America, United States Department of Justice, and
Robert L. Manchas, S.A. Sarah A. Walling, JENKINS FENSTERMAKER,
PLLC, Huntington, West Virginia, for Appellee Ohio Valley Drug
Task Force. Bruce M. Clark, BAILEY & WYANT, PLLC, Wheeling,
West Virginia, for Appellees Assessor of Ohio County, Kathie
Hoffman, Head Assessor, Roy Crews, Field Deputy, Unknown
Assessor, Ohio County Sheriff, Patrick Butler, Sheriff, Alex
Espejo, Corporal, Ron White, Deputy, Nelson Croft, Lieutenant,
Nichole Seifert, Officer, HNK, Unknown Officer, DLG, Unknown
Officer, Ohio County Animal Shelter, Doug McCrosky, Supervisor,
and Unknown Dog Wardens (2).
2
FLOYD, Circuit Judge:
As the Supreme Court recently reaffirmed, the Fourth
Amendment protects both homes and the “land immediately
surrounding and associated” with homes, known as curtilage, from
unreasonable government intrusions. Florida v. Jardines, 133 S.
Ct. 1409, 1414 (2013). In this civil suit, Cristopher and Lela
Covey allege that several government officials violated their
Fourth Amendment rights by entering curtilage--here, a walk-out
basement patio area attached to their home--in search of
marijuana. In response, the defendants claim (among other
things) that their searches were reasonable because they entered
the curtilage only after viewing Mr. Covey from a proper vantage
beyond the home’s curtilage. The district court ultimately
accepted the defendants’ characterization of the searches, and
so dismissed the case. In doing so, the district court failed
to construe the complaint in the light most favorable to the
Coveys, as it must when ruling on a Rule 12(b)(6) motion to
dismiss. Accordingly, we reverse and remand.
I.
The Coveys appeal the dismissal of their complaint for
failure to state a claim. Accordingly, we recount the facts as
alleged by the Coveys in their complaint, accepting as true all
3
well-pleaded facts. Owens v. Balt. City State’s Attorneys
Office, 767 F.3d 379, 388 (4th Cir. 2014).
A.
The Coveys live in a privately set home in the rural
village of Valley Grove, West Virginia. Trees surround their
home and obstruct it from view from any public place. For good
measure, the couple has conspicuously posted two “No
Trespassing” signs along the private driveway leading to their
home.
A parking area for visitors is located outside the home’s
garage. The parking area is connected to the home’s front door
by a paved walkway running from the parking area’s left side. A
yard abuts the parking area’s and home’s right side. A covered
“walk-out basement patio” attached to the home is also located
on the right side, several feet from the driveway. 1 J.A. 13.
B.
Around noon on October 21, 2009, Roy Crews, a field deputy
for the tax assessor of Ohio County, West Virginia, entered the
Coveys’ property to collect data to assess the value of the
1
In opposition to a defendant’s motion to dismiss, the
Coveys submitted pictures of this area to the district court.
Two of those pictures are attached to this opinion as an
appendix.
4
property for tax purposes. Despite seeing the “No Trespassing”
signs, Crews continued up the driveway to the Coveys’ house. He
did so despite West Virginia’s “standard visitation procedures,”
which provide that a tax data collector such as Crews “is not to
enter” a property if it “is posted with ‘No Trespassing’ signs.”
W. Va. Code. R. § 189–2–3.5.
After finding no one at the home, Crews opened the front
door and left a pamphlet inside. He then searched the house’s
curtilage, including the walk-out basement patio. There, Crews
found marijuana. After leaving the residence, Crews contacted
the county sheriff, Patrick Butler, to report that he found
marijuana at the Coveys’ house.
C.
After receiving Crews’s report, two law enforcement
officers went to the Coveys’ house to investigate: Corporal Alex
Espejo of the Ohio County Sheriff’s Office and DEA Special Agent
Robert Manchas. By the time they arrived at the house,
Mr. Covey had returned. According to the complaint, the
officers “proceeded to park on the private driveway of [the
Coveys’] residence in an area not normally used for visitor
parking.” J.A. 13. They then “proceed[ed] to enter curtilage,
specifically the walk-out basement patio area.” Id. “It was at
that time that they came upon [Mr. Covey], who was working at
5
his workbench.” Id. Although the complaint does not expressly
state when the officers first saw Mr. Covey, construing the
above allegations in his favor, it is reasonable to infer that
they did not see him until after entering the curtilage.
The officers then seized Mr. Covey and escorted him to
their car “parked off the driveway.” J.A. 13-14. After
detaining Mr. Covey, Corporal Espejo “re-enter[ed] the walk-out
basement patio area and conducted a search of the area.” J.A.
14. Likewise, Special Agent Manchas “re-entered [the] walk-out
basement patio area, opened the basement doors, leaned inside
and took photographs[,] and proceeded to seize evidence.” Id.
After seizing Mr. Covey, Corporal Espejo, Special Agent
Manchas, and other officers (who arrived later) waited for
several hours to obtain a warrant to search the house. During
that time, Mrs. Covey returned home, and an officer warned her
that she would be arrested if she entered the house. She was,
however, allowed to leave the premises. An hour after leaving,
Mrs. Covey allegedly returned and “was promptly unreasonably
seized” and interrogated. J.A. 15. After Corporal Espejo
returned with a search warrant, the Coveys were arrested and
jailed overnight.
6
D.
On March 30, 2010, Mr. Covey pleaded guilty in state court
to manufacturing marijuana. Pursuant to a plea agreement, the
government agreed not to “initiate any prosecution it does or
could have against [Mrs. Covey] for the events connected to or
arising” from the couple’s arrest. J.A. 44. On May 21, 2010,
Mr. Covey was sentenced to home confinement for a period of not
less than one year and not more than five years.
E.
On October 20, 2011, the Coveys brought suit pro se in the
district court against several defendants, including Crews,
Sheriff Butler, Corporal Espejo, Special Agent Manchas, the
Assessor of Ohio County, the Ohio County Sheriff’s Office, and
the Department of Justice (DOJ). The claims against these
defendants, brought under 42 U.S.C. § 1983 and Bivens, 2 alleged
that they violated the Coveys’ Fourth Amendment rights by
conducting an unreasonable search. 3
Between March and June 2012, each of the defendants moved
to dismiss the case. The parties filed a number of documents in
support of and in opposition to the defendants’ motions. For
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
3
The Coveys also brought state-law causes of action that
are not at issue in this appeal.
7
example, the DOJ attached Mr. Covey’s plea agreement in the
criminal case, among other documents. The Coveys did not object
to the inclusion of material outside the complaint. Rather,
they themselves also attached several documents to their
opposition to the motions to dismiss, including 11 annotated
pictures of their house and surrounding property, as well as the
criminal complaint filed against Mr. Covey. 4
In November 2012, a magistrate judge issued a report and
recommendation (R&R) suggesting that the district court dismiss
all federal claims and decline to exercise jurisdiction over the
state-law claims. Two months later, the district judge
“affirm[ed] and adopt[ed]” the R&R, while supplementing the
R&R’s statement of facts and reasoning. J.A. 66-84. The
district court concluded that neither the field deputy nor any
officer violated the Fourth Amendment. Thus, it did not address
the other arguments made by the defendants in their motions to
dismiss, including: (A) whether any defendant would be entitled
to qualified immunity from suit, see infra Part III.B, and
(B) whether the Heck 5 doctrine would bar the Coveys from bringing
their claims, see infra Part III.C. This appeal followed.
4
Although the district court did not expressly convert the
motions into motions for summary judgment, the district court
did rely on many of these documents in granting dismissal under
Rule 12(b)(6).
5
Heck v. Humphrey, 512 U.S. 477 (1994).
8
II.
We review a district court’s grant of a motion to dismiss
de novo. Owens, 767 F.3d at 388. In deciding such a motion, we
“‘accept as true all of the factual allegations contained in the
complaint,’ and ‘draw all reasonable inferences in favor of the
plaintiff.’” Id. (quoting E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). To
prevail, a plaintiff must “state a claim to relief that is
plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). A claim is plausible if “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678).
III.
We begin by addressing the Coveys’ contention that the
district court erred in finding that the complaint failed to
plead plausible claims for violations of the Fourth Amendment.
In the interest of judicial economy, we will also consider the
defendants’ legal arguments that the district court did not
reach--namely, qualified immunity and whether Heck bars the
Coveys’ claims. We address each argument in turn.
9
A.
Although the district court correctly stated the governing
Fourth Amendment legal framework, it incorrectly applied that
framework to the complaint’s allegations. We conclude that the
complaint, properly construed, pleads plausible claims for
violations of the Fourth Amendment.
The Fourth Amendment protects homes and the “land
immediately surrounding and associated” with homes, known as
curtilage, from unreasonable government intrusions. Oliver v.
United States, 466 U.S. 170, 180 (1984). “This area around the
home is ‘intimately linked to the home, both physically and
psychologically,’ and is where ‘privacy expectations are most
heightened.’” Jardines, 133 S. Ct. at 1415 (quoting California
v. Ciraolo, 476 U.S. 207, 213 (1986)). As with homes
themselves, “probable cause, and not reasonable suspicion, is
the appropriate standard for searches of the curtilage.” Rogers
v. Pendleton, 249 F.3d 279, 287 (4th Cir. 2001). “[W]e presume
a warrantless search of curtilage to be unreasonable.” Carman
v. Carroll, 749 F.3d 192, 197 (3d Cir. 2014), rev’d on other
grounds, 135 S. Ct. 348 (2014) (per curiam).
For purposes of their motions to dismiss, the defendants do
not dispute that Crews intruded into the Coveys’ home and
curtilage, and the officers into the Coveys’ curtilage.
Instead, they assert similar defenses. Specifically, the
10
officers argue that their conduct falls within the knock-and-
talk exception to the Fourth Amendment’s warrant requirement.
Crews contends that he reasonably intruded on the property to
achieve certain governmental interests. As set forth below,
neither of these arguments is persuasive.
1.
We first address the officers’ reliance on the so-called
knock-and-talk exception to the Fourth Amendment’s warrant
requirement. Under this exception, “a police officer not armed
with a warrant may approach a home and knock, precisely because
that is ‘no more than any private citizen might do.’” Jardines,
133 S. Ct. at 1416 (quoting Kentucky v. King, 131 S. Ct. 1849,
1862 (2011)). Thus, in the typical situation, there is an
“implicit license . . . to approach the home by the front path,
knock promptly, wait briefly to be received, and then (absent
invitation to linger longer) leave.” Id. at 1415. An officer
may also bypass the front door (or another entry point usually
used by visitors) when circumstances reasonably indicate that
the officer might find the homeowner elsewhere on the property. 6
6
For example, in Alvarez v. Montgomery County, police had
received a complaint about an “underage drinking party.” 147
F.3d 354, 356 (4th Cir. 1998). Officers responded to notify the
party house’s homeowner about the complaint and ask that no one
drive while intoxicated. Id. at 358. When the officers
(Continued)
11
Pena v. Porter, 316 F. App’x 303, 313 (4th Cir. 2009) (citing
Alvarez v. Montgomery Cnty., 147 F.3d 354, 356 (4th Cir. 1998)).
Critically, however, the right to knock and talk does not entail
a right to conduct a general investigation on a home’s
curtilage. See Rogers, 249 F.3d at 289.
Here, the officers claim that they were justified in
bypassing the front door because they saw Mr. Covey on the walk-
out basement patio area, thus giving them an implied invitation
to approach him. If the officers first saw Mr. Covey from a
non-curtilage area, they may well prevail under the knock-and-
talk exception at summary judgment. But, properly construed in
the Coveys’ favor, the complaint alleges that the officers saw
Mr. Covey only after they entered the curtilage. In responding
to the defendants’ motions to dismiss, the Coveys reiterated
this point, stating that the “only way [the officers] could have
observed [Mr. Covey] at his workbench or detected the smell of
marijuana was if they were standing right on [the Coveys’] rear
walkout patio area in [the] backyard.” Doc. 48, at 16. Indeed,
arrived, they first went to the house’s front stoop, where they
noticed a sign that read “Party In Back” and had an arrow
pointing toward the backyard. Id. at 357. The officers
bypassed the front door and entered the backyard. Id. Because
the officers had a legitimate purpose for entering the
backyard--unconnected with a search of the premises--and a sign
directed them to the backyard to find the homeowner, the knock-
and-talk exception applied. Id. at 358-59.
12
nothing in the complaint suggests that the officers had reason
to believe that Mr. Covey was in the patio area before
proceeding there. Thus, applying the proper Rule 12(b)(6)
standard, we find that the Coveys have plausibly alleged that
the officers violated their Fourth Amendment rights by entering
and searching the curtilage to the side of their house without a
warrant.
In concluding otherwise, the district court appears to have
accepted the officers’ assertions that they saw Mr. Covey before
they entered the curtilage. In doing so, the district court
primarily relied on matters outside the complaint, including
photographs of the Coveys’ home and statements made by the
officers in the criminal case. See J.A. 76 (stating that the
photographs “make clear that the view of the backyard patio area
[and Mr. Covey was] not impeded from the vantage point of the
parking area near the garage of the home”); id. (noting that
“the statements of Corporal Espejo submitted in the criminal
complaint indicate that the officers were able to see Mr. Covey
‘standing under the deck near the rear basement walk out door’
upon their arrival”). At the 12(b)(6) stage, the court should
have simply ignored this material. 7 In any event, when construed
7
Subject to certain exceptions not relevant here, Rule
12(d) of the Federal Rules of Civil Procedure requires that a
court treat a Rule 12(b)(6) motion as one for summary judgment
(Continued)
13
in the light most favorable to the Coveys, none of the
extraneous material compels dismissal.
First, even assuming the district court properly considered
the photographs of the Coveys’ home, it erred in finding that
they conclusively support the officers’ narrative. The
photographs do not reveal the officers’ exact position and line
of vision; Mr. Covey’s exact position, his posture, and whether
an object obstructed the officers’ view of his body; or whether
the officers could smell marijuana. As such, the photos do not
expressly contradict the complaint’s allegations that the
officers only saw Mr. Covey after intruding into the curtilage.
J.A. 13.
Corporal Espejo’s statements in the criminal complaint also
do not compel the conclusion that the officers could see
if “matters outside the pleadings are presented to and not
excluded by the court.” The district court did not convert any
motion into one for summary judgment, but instead assessed all
motions under Rule 12(b)(6). Although some of the parties’
filings (such as the criminal complaint) could have been used
for limited purposes (such as the fact that Mr. Covey was
charged and convicted for manufacturing marijuana), any disputed
testimony contained therein should have been ignored in favor of
the complaint’s allegations. See J.A. 33 (containing Corporal
Espejo’s narrative of his encounter with Mr. Covey, which the
district court construed in a way that conflicts with the
Coveys’ allegations). Perhaps more simply, the court could have
wholly ignored such attachments and relied exclusively on the
complaint. See Fed. R. Civ. P. 12(d) (providing an option for a
court to either (A) consider “matters outside the pleadings” and
treat a motion to dismiss “as one for summary judgment” or (B)
exclude the matters).
14
Mr. Covey from a proper vantage. Corporal Espejo simply stated
that the officers saw Mr. Covey “upon arrival.” See J.A. 33
(“Upon arrival officers observed [Mr. Covey] standing under the
deck near the rear basement walk out door.”). Because “upon”
can mean “very soon after,” the statement does not negate the
possibility that the officers arrived, went straight to the
curtilage, and only then saw Mr. Covey. Upon Definition,
Dictionary.com, dictionary.reference.com/browse/upon. In
finding otherwise, the district court ignored both the familiar
Rule 12(b)(6) standard (requiring the court to construe the
complaint in the light most favorable to the plaintiffs) and the
well-settled rule that courts should construe pro se complaints
liberally. Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722 (4th
Cir. 2010).
2.
We next address Crews’s arguments that his intrusion did
not violate the Fourth Amendment. The pertinent inquiry is
whether Crews’s actions were “unduly intrusive,” based on the
intrusion’s methods and purpose. Widgren v. Maple Grove Twp.,
429 F.3d 575, 583, 585 (6th Cir. 2005). This entails a
“flexible standard, ‘balancing the need to search against the
invasion which the search entails.’” Turner v. Dammon, 848 F.2d
440, 445-46 (4th Cir. 1988) (quoting Camara v. Mun. Court of
15
City & Cnty. of S.F., 387 U.S. 523, 536-37 (1967)), abrogated on
other grounds by Johnson v. Jones, 515 U.S. 304, 308-09 (1995).
“[W]e should construe the Fourth Amendment ‘in a manner which
will conserve public interests as well as the interests and
rights of individual citizens.’” Taylor v. Mich. Dep’t of
Natural Res., 502 F.3d 452, 457 (6th Cir. 2007) (quoting Kyllo
v. United States, 533 U.S. 27, 40 (2001)).
As an initial matter, we agree with Crews that his
violation of the State’s administrative regulation (prohibiting
data collectors from entering a property where a “No
Trespassing” sign is posted) does not per se amount to a
violation of the Fourth Amendment. See Hovater v. Robinson, 1
F.3d 1063, 1068 n.4 (10th Cir. 1993) (citing Davis v. Scherer,
468 U.S. 183, 194 (1984)) (noting that a mere “failure to adhere
to administrative regulations does not equate to a
constitutional violation”). This argument is not dispositive,
however, because Crews did more than merely ignore the “No
Trespassing” signs.
The complaint alleges that Crews committed three distinct
intrusions: (1) enter onto the Coveys’ property; (2) enter into
their house; and (3) search the curtilage. Even if the first
intrusion was justified under the open-fields doctrine, see
Jardines, 133 S. Ct. at 1414 (noting that the Fourth Amendment
does not protect open fields from government investigations),
16
the other two were clearly not. What began as a mere regulatory
violation turned into an affront to the Coveys’ constitutional
rights when Crews entered the curtilage and the Coveys’ home.
We do not suggest that the administrative regulations are
irrelevant here, however. To the contrary, they directly rebut
Crews’s argument that his intrusion was justified by the
government’s interest in collecting tax data. Section 189–2–
3.5 of the West Virginia Code of State Rules deems the citizen’s
privacy interest supreme when he or she posts a “No Trespassing”
sign. As a result, the governmental interest compelling Crews’s
actions was minimal. In turn, the Coveys’ privacy interest--the
right not to have state actors unreasonably enter their home and
rummage around their property--is significant. Thus, the Coveys
have pleaded a plausible claim that Crews conducted an
unreasonable search of their home and curtilage.
In finding that Crews did not search anything for which the
Coveys had an “objectively reasonable expectation of privacy,”
the R&R said:
nothing unduly intrusive occurred: the
assessor used ordinary methods to observe
the house; there is no evidence he craned
his neck or was straining to observe
anything; and although Plaintiffs allege
that he did open the door, it was only to
drop a pamphlet inside and the marijuana he
observed was in the backyard, not inside.
17
J.A. 59. Again, the district court applied the wrong standard
at the motion-to-dismiss stage. The Coveys only needed to plead
facts that constitute a plausible claim that Crews violated
their Fourth Amendment rights, Owens, 767 F.3d at 388, not
produce evidence that Crews “craned his neck or was straining to
observe anything,” J.A. 59. Indeed, in assuming that the
“assessor used ordinary methods to observe the house” and that
he entered the Coveys’ house “only to drop a pamphlet inside,”
the district court made inferences favorable to Crews, not the
Coveys. Id.
B.
All the defendants also argue that they are entitled to
qualified immunity. Although the district court did not rule on
this issue and instead found that there was no Fourth Amendment
violation in the first instance, the argument was raised below
and is therefore properly before the Court. See Singleton v.
Wulff, 428 U.S. 106, 121 (1976).
Qualified immunity “shields federal and state officials
from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S.
Ct. 2074, 2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S.
18800, 818 (1982)). “To be clearly established, a right must be
sufficiently clear ‘that every reasonable official would have
understood that what he is doing violates that right.’” Reichle
v. Howards, 132 S. Ct. 2088, 2093 (2012) (quoting al-Kidd, 131
S. Ct. at 2078) (brackets and internal quotation marks omitted).
At this stage, we cannot conclude that the defendants are
entitled to qualified immunity. As to the police officers, the
Supreme Court has held that no reasonable officer can “claim to
be unaware of the basic rule, well established by our cases,
that, absent consent or exigency, a warrantless search of the
home is presumptively unconstitutional.” Groh v. Ramirez, 540
U.S. 551, 564 (2004). As we have recognized for over a decade,
“the curtilage is entitled to the same level of Fourth Amendment
protection extended to the home.” Rogers, 249 F.3d at 287. As
alleged in the complaint, the officers violated clearly
established law by proceeding directly to where they suspected
marijuana would be found and without any reason to believe that
they would find Mr. Covey there. Thus, they are not entitled to
qualified immunity at this stage.
The tax assessor’s claim to qualified immunity is a closer
call. On one hand, “an official who performs an act clearly
established to be beyond the scope of his discretionary
authority is not entitled to claim qualified immunity under
§ 1983,” and the Supreme Court has “made clear that
19
determination of the scope of an official’s authority depends
upon an analysis of the statutes or regulations controlling the
official’s duties.” In re Allen, 106 F.3d 582, 593, 595 (4th
Cir. 1997) (citing Doe v. McMillan, 412 U.S. 306, 321-24 (1973),
and Barr v. Matteo, 360 U.S. 564, 574-75 (1959)). Arguably, by
entering into the curtilage and house despite the presence of
“No Trespassing” signs and a regulation’s explicit directive to
leave, the tax assessor exceeded his discretionary authority and
therefore should not be entitled to qualified immunity. On the
other hand, the Supreme Court has repeatedly instructed that we
should not “define clearly established law at a high level of
generality.” al-Kidd, 131 S. Ct. at 2084.
The parties have failed to offer any caselaw involving
facts substantially similar to this case. Thus, it may be
unwarranted to deny qualified immunity on the basis that “a
reasonable [civil servant] would have known” that merely
entering into the curtilage, in contravention to a regulatory
directive, violated a clearly established right under the
Constitution. Wall v. Wade, 741 F.3d 492, 498 (4th Cir. 2014)
(quoting Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d
292, 306 (4th Cir. 2006)). As already stated, however, the
exact manner in which Crews searched the property is unknown and
should be developed through discovery. Therefore, at this
stage, Crews is not entitled to qualified immunity.
20
C.
Lastly, the defendants claim that the Coveys’ § 1983 and
Bivens 8 claims are barred by Heck v. Humphrey, 512 U.S. 477(1994). Although the district court did not rule on this issue,
it was raised before the district court and has been preserved
for consideration on appeal. See Singleton, 428 U.S. at 121.
We have imposed two requirements for Heck to bar a § 1983
or Bivens claim. First, “a judgment in favor of the plaintiff
[must] necessarily imply the invalidity of [a plaintiff’s]
conviction or sentence.” Heck, 512 U.S. at 487. Second, the
claim must be brought by a claimant who is either (i) currently
in custody or (ii) no longer in custody because the sentence has
been served, but nevertheless could have practicably sought
habeas relief while in custody. See Wilson v. Johnson, 535 F.3d
262, 267–68 (4th Cir. 2008); Bishop v. Cnty. of Macon, 484 F.
App’x 753, 755 (4th Cir. 2012) (per curiam).
To the extent Mr. Covey’s claims challenge the defendants’
searches of his home and curtilage, we conclude that they do not
necessarily imply the invalidity of his conviction and thus are
not barred by Heck. As Heck itself recognizes, civil claims
based on unreasonable searches do not necessarily imply that the
8
Although Heck involved only a § 1983 claim, 512 U.S. at
479, we have construed Heck to apply equally to Bivens claims,
Poston v. Shappert, 222 F. App’x 301, at *1 (4th Cir. 2007) (per
curiam).
21
resulting criminal convictions were unlawful. Heck, 541 U.S. at
487 n.7. A valid conviction can still result after an improper
search when doctrines such as independent source, inevitable
discovery, or harmless error would alleviate the effect of the
improper search. See id. Moreover, a civil-rights claim does
not necessarily imply the invalidity of a conviction or sentence
if (1) the conviction derives from a guilty plea rather than a
verdict obtained with unlawfully obtained evidence and (2) the
plaintiff does not plead facts inconsistent with guilt. E.g.,
Lockett v. Ericson, 656 F.3d 892, 897 (9th Cir. 2011);
Easterling v. Moeller, 334 F. App’x 22, 24 (7th Cir. 2009).
This is the case here. Mr. Covey never contested his guilt.
Nor did he ever seek to suppress the evidence underlying his
conviction. Thus, relief under § 1983 or Bivens for the alleged
illegal searches does not implicate the propriety of Mr. Covey’s
conviction, and Heck acts as no bar.
On the other hand, some of Mr. Covey’s claims would imply
the conviction’s invalidity. For example, in a portion of the
complaint, Mr. Covey alleges that he was falsely imprisoned and
deprived of his liberty. J.A. 19-20. We construe this
allegation as pertaining to Mr. Covey’s period of home
confinement. As to Mr. Covey, but not necessarily Mrs. Covey,
see Bishop, 484 F. App’x at 756 (finding Heck inapplicable to
the claims of a former prisoner’s mother), relief for this
22
“injury” would necessarily imply the invalidity of Mr. Covey’s
conviction. 9 See Heck, 512 U.S. at 487 n.7 (stating that damages
are recoverable for only an “actual, compensable injury,” which
“does not encompass the ‘injury’ of being convicted and
imprisoned (until [the] conviction has been overturned)”). That
conclusion alone, however, does not end our inquiry.
We have held once--in an unpublished opinion--that Heck
bars a claim that implies the invalidity of a conviction or
sentence even if the claimant is no longer in custody, 10 but only
9
Indeed, at oral argument, appointed counsel for the Coveys
conceded that “Mr. Covey cannot recover damages from the
criminal proceeding” and said that the Coveys were not asking
for such relief.
10
From its inception, Heck has clearly applied to prisoners
currently in custody. See Heck, 512 U.S. at 478 (stating the
issue as “whether a state prisoner” can bring a challenge). The
Supreme Court has not, however, definitively decided whether
Heck ever applies if a claimant has served his or her sentence
and is no longer in custody, as is the case here.
On one hand, a footnote in Heck suggests that its
requirements apply even to claimants that are no longer in
custody. See id. at 490 n.10 (“We think the principle barring
collateral attacks—a longstanding and deeply rooted feature of
both the common law and our own jurisprudence—is not rendered
inapplicable by the fortuity that a convicted criminal is no
longer incarcerated.”). On the other hand, Justice Souter wrote
a concurring opinion in Heck, joined by three justices,
concluding just the opposite. Heck, 512 U.S. at 492, 502(Souter, J., concurring in judgment). Later, in Spencer v.
Kemna, four justices supported the “better view” in Justice
Souter’s concurrence in Spencer that a prisoner no longer in
custody should be able to challenge the constitutionality of his
or her conviction. 523 U.S. 1, 18-25 (1998). Although circuits
are split on this issue, our Court follows the majority view--
based on Judge Souter’s analysis--that Heck does not apply to
claimants no longer in custody and thus without access to habeas
(Continued)
23
if the claimant could have practicably sought habeas relief
while in custody and failed to do so. 11 Bishop, 484 F. App’x at
755. At this stage, it is unclear whether Mr. Covey actually
pursued or was practicably able to pursue habeas relief for his
conviction. Mr. Covey pleaded guilty on March 30, 2010, and was
thereafter sentenced to home confinement for a period of not
less than one year and no more than five years. The Coveys
filed this action on October 20, 2011, after Mr. Covey completed
relief, at least when the claimant is not responsible for
failing to seek or limiting his own access to habeas relief.
Wilson, 535 F.3d at 267–68; accord Cohen v. Longshore, 621 F.3d
1311, 1316–17 (10th Cir. 2010) (holding that Heck is
inapplicable “at least where [an] inability [to obtain habeas
relief] is not due to the petitioner’s own lack of diligence”
(emphasis added)).
11
Because of inadequate briefing by the parties on this
issue, we do not address whether a Heck bar properly applies to
a person formerly in custody, even if the person could have
practicably sought habeas relief. We simply note that the
binding precedent from the Supreme Court and in this Circuit
does not clearly impose a “practicable diligence” requirement
for former prisoners. See Spencer, 523 U.S. at 21 (Souter, J.,
concurring) (noting that Heck should not bar a claim if it would
be “impossible as a matter of law” for a person to satisfy the
favorable-termination requirement, without specifying whether it
should apply if habeas relief was ever possible); Wilson, 535
F.3d at 268 (noting that “courts have taken a keen interest” in
whether “a prisoner could have filed a habeas” petition, but not
imposing a practicable-diligence requirement). But see Burd v.
Sessler, 702 F.3d 429, 436 (7th Cir. 2012) (declining to permit
“a plaintiff who ignored his opportunity to seek collateral
relief while incarcerated to skirt the Heck bar simply by
waiting to bring a § 1983 claim until habeas is no longer
available”); Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir.
2003) (finding Heck applicable, despite the legal impossibility
of pursuing habeas relief, because “failure timely to achieve
habeas relief is self-imposed”).
24
his term of home confinement. If Mr. Covey was unable to pursue
habeas relief because of insufficient time or some other
barrier, then Heck is wholly inapplicable to the Coveys’ § 1983
and Bivens claims. Because we cannot make this determination on
the record, we hold that Heck does not bar any of Mr. Covey’s
claims for purposes of the defendants’ motions to dismiss. We
leave it to the district court on remand to decide at summary
judgment whether Heck bars any of Mr. Covey’s claims.
IV.
In summary, the Coveys have sufficiently pleaded under
§ 1983 and Bivens that Crews, Corporal Espejo, and Special Agent
Manchas violated clearly established law under the Fourth
Amendment. On remand, the district court should consider
whether Heck applies to Mr. Covey, based on his status as a
person formerly in custody. If the district court properly
rules that Heck applies despite Mr. Covey’s status as such a
person, then Heck bars Mr. Covey from seeking relief for
injuries arising from his conviction and sentence, but not
relief for a subset of the injuries alleged. The district
court’s orders are reversed. The case is remanded for further
proceedings.
REVERSED AND REMANDED
25
Appendix
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