Christopher Covey v. Assessor of Ohio County
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:11-cv-00147-FPS-JES. [999516908]. [13-1227]
Appeal: 13-1227
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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,
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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).
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FLOYD, Circuit Judge:
As
the
Amendment
Supreme
protects
Court
both
recently
homes
and
reaffirmed,
the
the
immediately
“land
Fourth
surrounding and associated” with homes, known as curtilage, from
unreasonable government intrusions.
Ct. 1409, 1414 (2013).
Florida v. Jardines, 133 S.
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
marijuana.
In
area
attached
response,
to
the
their
home--in
defendants
claim
search
(among
of
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
failure to state a claim.
dismissal
of
their
complaint
for
Accordingly, we recount the facts as
alleged by the Coveys in their complaint, accepting as true all
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well-pleaded
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facts.
Owens
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v.
Balt.
City
State’s
Attorneys
Office, 767 F.3d 379, 388 (4th Cir. 2014).
A.
The
Coveys
live
in
a
privately
set
village of Valley Grove, West Virginia.
home
in
the
couple
has
rural
Trees surround their
home and obstruct it from view from any public place.
measure,
the
conspicuously
posted
For good
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.
yard abuts the parking area’s and home’s right side.
A
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
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property for tax purposes.
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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.
found marijuana.
the
county
There, Crews
After leaving the residence, Crews contacted
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.
Mr. Covey
had
By
time
returned.
officers “proceeded
Coveys’] residence
parking.”
the
J.A. 13.
to
in
According
park
an
they
on
area
the
not
arrived
at
to
complaint,
the
private
normally
the
driveway
used
for
house,
of
the
[the
visitor
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
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his workbench.”
Id.
state
officers
when
the
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Although the complaint does not expressly
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
their
officers
car
then
“parked
off
seized
the
Mr.
Covey
driveway.”
and
escorted
him to
13-14.
After
J.A.
detaining Mr. Covey, Corporal Espejo “re-enter[ed] the walk-out
basement patio area and conducted a search of the area.”
14.
J.A.
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.”
After
Manchas,
seizing
and
Mr. Covey,
other
officers
Corporal
(who
Espejo,
arrived
Special
later)
Id.
Agent
waited
several hours to obtain a warrant to search the house.
for
During
that time, Mrs. Covey returned home, and an officer warned her
that she would be arrested if she entered the house.
however, allowed to leave the premises.
Mrs. Covey
seized”
and
allegedly
returned
interrogated.
and
J.A.
“was
15.
She was,
An hour after leaving,
promptly
After
unreasonably
Corporal
Espejo
returned with a search warrant, the Coveys were arrested and
jailed overnight.
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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
Sheriff
Butler,
against
several
Corporal
defendants,
Espejo,
Special
including
Agent
Crews,
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.
2
For
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.
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example,
the
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DOJ
attached
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Mr. Covey’s
criminal case, among other documents.
plea
agreement
themselves
also
attached
the
The Coveys did not object
to the inclusion of material outside the complaint.
they
in
several
documents
Rather,
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.
“affirm[ed]
R&R’s
and
statement
Two
months
adopt[ed]”
of
facts
the
and
later,
R&R,
the
while
reasoning.
district
judge
supplementing
J.A.
66-84.
the
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.
4
This appeal followed.
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).
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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,
is
a
plaintiff
must
plausible on its face.”
U.S. 662, 678 (2009)).
pleads
factual
reasonable
misconduct alleged.”
a
claim
to
relief
that
Id. (quoting Ashcroft v. Iqbal, 556
A claim is plausible if “the plaintiff
content
inference
“state
that
that
allows
the
the
defendant
court
is
to
liable
draw
the
for
the
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
reach--namely,
Coveys’ claims.
arguments
qualified
that
immunity
the
and
district
whether
We address each argument in turn.
9
court
Heck
did
not
bars
the
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A.
Although the district court correctly stated the governing
Fourth Amendment legal framework, it incorrectly applied that
framework to the complaint’s allegations.
complaint,
properly
construed,
We conclude that the
pleads
plausible
claims
for
violations of the Fourth Amendment.
The
Fourth
immediately
Amendment
surrounding
protects
and
homes
associated”
with
and
the
homes,
curtilage, from unreasonable government intrusions.
United States, 466 U.S. 170, 180 (1984).
home
is
‘intimately
linked
to
the
“land
known
as
Oliver v.
“This area around the
home,
both
physically
and
psychologically,’ and is where ‘privacy expectations are most
heightened.’”
v.
Jardines, 133 S. Ct. at 1415 (quoting California
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.”
v. Pendleton, 249 F.3d 279, 287 (4th Cir. 2001).
Rogers
“[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
curtilage,
Instead,
that
and
they
Crews
the
assert
intruded
officers
into
into
similar
the
the
defenses.
10
Coveys’
Coveys’
home
and
curtilage.
Specifically,
the
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officers argue that their conduct falls within the knock-andtalk 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
requirement.
exception
to
the
Fourth
Amendment’s
warrant
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,
“implicit license . . .
in
the
typical
situation,
there
is
an
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)
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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
curtilage.
Here,
to
conduct
a
general
investigation
on
a
home’s
See Rogers, 249 F.3d at 289.
the
officers
claim
that
they
were
justified
in
bypassing the front door because they saw Mr. Covey on the walkout 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-andtalk 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 knockand-talk exception applied. Id. at 358-59.
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nothing in the complaint suggests that the officers had reason
to
believe
proceeding
that
Mr. Covey
there.
Thus,
was
in
applying
the
the
patio
proper
area
Rule
before
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.
primarily
relied
photographs
of
on
the
matters
Coveys’
In doing so, the district court
outside
home
officers in the criminal case.
and
the
complaint,
statements
including
made
by
the
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
7
In any event, when construed
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)
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in
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the
light
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most
favorable
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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.
expressly
contradict
the
As such, the photos do not
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).
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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
curtilage,
that
and
the
only
Dictionary.com,
officers
then
arrived,
saw
Mr.
went
Covey.
straight
Upon
to
the
Definition,
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.
429
F.3d
575,
583,
585
(6th
Widgren v. Maple Grove Twp.,
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
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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
rights
of
public
interests
individual
as
well
citizens.’”
as
Taylor
the
v.
interests
Mich.
and
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
Trespassing”
from
sign
is
entering
posted)
a
does
violation of the Fourth Amendment.
property
not
per
where
se
a
amount
“No
to
a
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,
more
because
Crews
did
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.
intrusion
was
justified
under
the
Even if the first
open-fields
doctrine,
see
Jardines, 133 S. Ct. at 1414 (noting that the Fourth Amendment
does not protect open fields from government investigations),
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the other two were clearly not.
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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.
Crews’s
argument
that
To the contrary, they directly rebut
his
intrusion
was
justified
government’s interest in collecting tax data.
by
the
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.
have
pleaded
a
plausible
claim
that
Thus, the Coveys
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.
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J.A. 59.
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Again, the district court applied the wrong standard
at the motion-to-dismiss stage.
facts
that
constitute
their
Fourth
a
Amendment
The Coveys only needed to plead
plausible
rights,
claim
Owens,
that
767
Crews
F.3d
violated
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
from
money
(1) that
the
immunity
damages
“shields
unless
official
a
federal
plaintiff
violated
a
and
state
pleads
statutory
or
officials
facts
showing
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.
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800, 818 (1982)).
Pg: 19 of 26
“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.”
U.S. 551, 564 (2004).
Groh v. Ramirez, 540
As we have recognized for over a decade,
“the curtilage is entitled to the same level of Fourth Amendment
protection extended to the home.”
alleged
in
the
complaint,
Rogers, 249 F.3d at 287.
the
officers
violated
As
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
authority
is
§ 1983,”
and
be
not
beyond
entitled
the
the
to
Supreme
scope
claim
Court
19
of
his
qualified
has
discretionary
immunity
“made
clear
under
that
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Pg: 20 of 26
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.”
The
facts
al-Kidd, 131 S. Ct. at 2084.
parties
have
substantially
unwarranted
to
reasonable
[civil
failed
similar
deny
to
to
qualified
servant]
offer
this
case.
immunity
would
any
have
caselaw
Thus,
on
the
involving
it
basis
known”
that
may
be
that
“a
merely
entering into the curtilage, in contravention to a regulatory
directive,
violated
Constitution.
a
clearly
established
right
under
the
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,
stage, Crews is not entitled to qualified immunity.
20
at
this
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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.
[must]
First, “a judgment in favor of the plaintiff
necessarily
imply
conviction or sentence.”
the
invalidity
of
[a
plaintiff’s]
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
habeas relief while in custody.
have
practicably
sought
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).
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resulting criminal convictions were unlawful.
487 n.7.
search
Heck, 541 U.S. at
A valid conviction can still result after an improper
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.
Lockett
v.
Ericson,
656
F.3d
892,
897
(9th
Cir.
E.g.,
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
allegation
his
as
confinement.
liberty.
pertaining
J.A.
to
19-20.
Mr. Covey’s
We
construe
period
of
this
home
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
22
mother),
relief
for
this
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“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
imprisoned (until [the] conviction has been overturned)”).
and
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)
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if
the
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claimant
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could
have
Pg: 24 of 26
practicably
while in custody and failed to do so. 11
755.
sought
habeas
relief
Bishop, 484 F. App’x at
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
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his term of home confinement.
habeas
relief
because
of
Pg: 25 of 26
If Mr. Covey was unable to pursue
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
Amendment.
On
clearly
remand,
established
the
district
law
under
court
the
should
Fourth
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
injuries
relief
Heck
arising
for
a
bars
from
subset
Mr. Covey
his
of
conviction
the
court’s orders are reversed.
from
injuries
seeking
and
relief
sentence,
alleged.
The
but
for
not
district
The case is remanded for further
proceedings.
REVERSED AND REMANDED
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Appendix
26
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