186 777 federal reporter, 3d series186 777 federal reporter, 3d series anticipate the myriad...

186 777 FEDERAL REPORTER, 3d SERIES

anticipate the myriad evolving circum-stances that commanders encounter on theground or on the seas, much less which ofthe many possible options those command-ers should choose in responding to them.In short, the firing upon the JCT 68 andthe subsequent sinking of that vessel werediscretionary acts that the judiciary maynot take it upon itself to review.

IV.

[21] Wu asserts that the district courtshould have allowed discovery or at leastheld an evidentiary hearing to establishthat this case is justiciable. See Appel-lant’s Br. 17–18, 29; Reply Br. 15–17. Shepoints to our recent decision in Al Shimariv. CACI Premier Tech., Inc., 758 F.3d 516,534, 537 (4th Cir.2014), as demonstrationthat discovery is needed to determine ifthe claim may proceed. But that case isvery different from the case at bar. AlShimari involved a private contractorworking for the federal government, a situ-ation for which this Court has developed aspecialized political question doctrine anal-ysis. See id. at 533–34 (explaining testdeveloped in Taylor v. Kellogg Brown &Root Servs., Inc., 658 F.3d 402 (4th Cir.2011)). More importantly, in Al Shimariwe were ‘‘unable to assess whether a deci-sion on the merits would require the judi-ciary ‘to question actual, sensitive judg-ments made by the military.’ ’’ 758 F.3d at536 (quoting Taylor, 658 F.3d at 411).The complaint and accompanying record inthis case do not suffer from the samedefects.

Whether or not every single fact in theNavy’s unclassified investigative report isaccurate, it quite clearly provided an over-all picture of the military engagement.The district court was not required to liti-

gate every fact in the report before mak-ing the political question or discretionaryfunction determination, because litigatingthe facts would constitute just the sort ofinvolvement that those doctrines are de-signed to avoid. We do not for a momenttrivialize either Master Wu’s death or thedestruction of his ship, for which diplomat-ic channels should in all kindness dictaterecompense.2 But whether or not theUSS Groves properly approached and en-gaged the JCT 68 and whether or not theUSS Groves should have sunk the vesselare matters of international import andmilitary judgment in which we are loath tointerfere. Under our constitutional sys-tem of separation-of-powers, these casesraise questions that the judiciary is notempowered to answer. The district courtdid not err in dismissing the suit. Itsjudgment is

AFFIRMED.

,

Christopher J. COVEY; Lela G. Covey,Plaintiffs–Appellants,

v.

ASSESSOR OF OHIO COUNTY; Ka-thie Hoffman, Head Assessor; RoyCrews, Field Deputy; Unknown Asses-sor; Ohio County Sheriff; PatrickButler, Sheriff; Alex Espejo, Corpo-ral; Ron White, Deputy; NelsonCroft, Lieutenant; Nichole Seifert,Officer; HNK, Unknown Officer;DLG, Unknown Officer; Department

2. The government asserts that ‘‘[a]cting underits authority to conduct international rela-tions,’’ the United States has in fact made a

payment to Master Wu’s family. See Gov’tBr. 4 n. 1.

187COVEY v. ASSESSOR OF OHIO COUNTYCite as 777 F.3d 186 (4th Cir. 2015)

Of Justice–DEA; Ohio Valley DrugTask Force; Ohio County AnimalShelter; Doug McCrosky, Supervisor;Unknown Dog Wardens (2); UnitedStates of America; Robert L. Man-chas, S.A, Defendants–Appellees.

No. 13–1227.

United States Court of Appeals,Fourth Circuit.

Argued Oct. 28, 2014.

Decided Jan. 26, 2015.

Background: Home owners filed actionpursuant to § 1983 and Bivens allegingthat county and federal officials violatedtheir Fourth Amendment rights by enter-ing walk-out basement patio area attachedto their home in search of marijuana. TheUnited States District Court for theNorthern District of West Virginia, Fred-erick P. Stamp, Jr., Senior Judge, 2013WL 312475, adopted report and recom-mendation of James E. Seibert, UnitedStates Magistrate Judge, 2012 WL6945013, and dismissed complaint. Ownersappealed.

Holdings: The Court of Appeals, Floyd,Circuit Judge, held that:

(1) owners plausibly alleged that officersviolated their Fourth Amendmentrights;

(2) owners stated plausible claim againstcounty tax assessor;

(3) officers were not entitled to qualifiedimmunity;

(4) tax assessor was not entitled to quali-fied immunity; and

(5) owner’s claims were not barred byHeck v. Humphrey.

Reversed and remanded.

1. Searches and Seizures O25.1, 27Fourth Amendment protects homes

and land immediately surrounding and as-

sociated with homes, known as curtilage,from unreasonable government intrusions.U.S.C.A. Const.Amend. 4.

2. Searches and Seizures O40.1

Probable cause, and not reasonablesuspicion, is appropriate standard forsearches of curtilage. U.S.C.A. Const.Amend. 4.

3. Searches and Seizures O27

Warrantless search of curtilage is pre-sumed to be unreasonable. U.S.C.A.Const.Amend. 4.


Under knock-and-talk exception toFourth Amendment’s warrant require-ment, police officer not armed with war-rant may approach home and knock, pre-cisely because that is no more than anyprivate citizen might do. U.S.C.A. Const.Amend. 4.

5. Searches and Seizures O27, 53.1

Police officer’s right to knock and talkdoes not entail right to conduct generalinvestigation on home’s curtilage.U.S.C.A. Const.Amend. 4.

6. Controlled Substances O134, 137

Home owners plausibly alleged thatofficers violated their Fourth Amendmentrights by entering and searching curtilageto side of their house without warrant,despite officers’ contention that they werejustified in bypassing front door becausethey saw owner on walkout basement patioarea, where owners claimed that only wayofficers could have observed owner at hisworkbench or detected smell of marijuanawas if they were standing right on rearwalkout patio area in backyard. U.S.C.A.Const.Amend. 4.


Court should construe Fourth Amend-ment in manner that will conserve public


interests as well as interests and rights ofindividual citizens. U.S.C.A. Const.Amend. 4.

8. Searches and Seizures O80.1

County tax assessor’s violation ofstate’s administrative regulation prohibit-ing data collectors from entering propertywhere ‘‘No Trespassing’’ sign was posteddid not per se amount to violation ofFourth Amendment. U.S.C.A. Const.Amend. 4.


Home owners’ allegation that countytax assessor entered onto their property,entered into house, and searched curtilagewas sufficient to state plausible claimagainst assessor for violation of theirFourth Amendment rights, even if his ini-tial entry onto property was justified un-der open-fields doctrine, where owners hadposted ‘‘No Trespassing’’ signs, and stateregulation prohibited assessor from enter-ing onto property. U.S.C.A. Const.Amend. 4.

10. Civil Rights O1376(3)

United States O50.5(2)

Qualified immunity shields federal andstate officials from money damages unlessplaintiff pleads facts showing that: (1) offi-cial violated statutory or constitutionalright, and (2) right was clearly establishedat time of challenged conduct.


To be ‘‘clearly established,’’ for quali-fied immunity purposes, right must be suf-ficiently clear that every reasonable officialwould have understood that what he isdoing violates that right.

See publication Words and Phras-es for other judicial constructionsand definitions.


United States O50.10(3)

No reasonable officer could haveclaimed to be unaware of basic rule that,absent consent or exigency, warrantlesssearch of home was presumptively uncon-stitutional, and thus county and federalofficers who conducted warrantless searchof curtilage were not entitled to qualifiedimmunity from liability under § 1983 andBivens in home owners’ illegal search ac-tion. U.S.C.A. Const.Amend. 4; 42U.S.C.A. § 1983.

13. Civil Rights O1376(2)Official who performs act clearly es-

tablished to be beyond scope of his discre-tionary authority is not entitled to claimqualified immunity under § 1983. 42U.S.C.A. § 1983.

14. Civil Rights O1376(4)County tax assessor was not entitled

to qualified immunity under § 1983, at mo-tion to dismiss phase, from claim that heviolated Fourth Amendment by enteringproperty without warrant, despite ‘‘NoTrespassing’’ signs, in violation of stateregulation, and conducting search of curti-lage, absent caselaw involving similarfacts, and discovery relating to exact man-ner in which he searched property.U.S.C.A. Const.Amend. 4; 42 U.S.C.A.§ 1983.

15. Civil Rights O1088(5) United States O50.10(3)

In order for Heck v. Humphrey to bar§ 1983 or Bivens claim, judgment in plain-tiff’s favor must necessarily imply invalidi-ty of plaintiff’s conviction or sentence, andclaim must be brought by claimant who iseither (1) currently in custody or (2) nolonger in custody because sentence hasbeen served, but nevertheless could havepracticably sought habeas relief while incustody. 42 U.S.C.A. § 1983.


16. Civil Rights O1088(3) United States O50.10(3)

Homeowner’s claims that county andfederal officials’ warrantless entry into andsearch of his home and curtilage violatedhis Fourth Amendment rights did not nec-essarily imply invalidity of his convictionfor manufacturing marijuana, and thusHeck v. Humphrey did not bar owner’saction asserting claims under § 1983 andBivens, where owner never contested hisguilt or seek to suppress evidence.U.S.C.A. Const.Amend. 4; 42 U.S.C.A.§ 1983.

ARGUED: Sean Eric Andrussier, DukeUniversity School of Law, Durham, NorthCarolina, for Appellants. Thomas E.Buck, Bailey & Wyant, PLLC, Wheeling,West Virginia; Edward Himmelfarb, Unit-ed States Department of Justice, Wash-ington, D.C.; Lee Murray Hall, JenkinsFenstermaker, PLLC, Huntington, WestVirginia, for Appellees. ON BRIEF: Shi-fali Baliga, Nicholas S. Brod, Erika M.Hyde, Students, Duke University Schoolof Law, Durham, North Carolina, for Ap-pellants. Stuart F. Delery, Assistant At-torney General, William J. Ihlenfeld, II,United States Attorney, Mark B. Stern,Civil Division, United States Departmentof Justice, Washington, D.C., for AppelleesUnited States of America, United StatesDepartment of Justice, and Robert L.Manchas, S.A. Sarah A. Walling, JenkinsFenstermaker, PLLC, Huntington, WestVirginia, for Appellee Ohio Valley DrugTask Force. Bruce M. Clark, Bailey &Wyant, PLLC, Wheeling, West Virginia,for Appellees Assessor of Ohio County,Kathie Hoffman, Head Assessor, RoyCrews, Field Deputy, Unknown Assessor,Ohio County Sheriff, Patrick Butler, Sher-iff, Alex Espejo, Corporal, Ron White,

Deputy, Nelson Croft, Lieutenant, NicholeSeifert, Officer, HNK, Unknown Officer,DLG, Unknown Officer, Ohio County Ani-mal Shelter, Doug McCrosky, Supervisor,and Unknown Dog Wardens (2).

Before GREGORY, FLOYD, andTHACKER, Circuit Judges.

Reversed and remanded by publishedopinion. Judge FLOYD wrote the opinion,in which Judge GREGORY and JudgeTHACKER joined.

FLOYD, Circuit Judge:

As the Supreme Court recently reaf-firmed, the Fourth Amendment protectsboth homes and the ‘‘land immediately sur-rounding and associated’’ with homes,known as curtilage, from unreasonablegovernment intrusions. Florida v. Jar-dines, ––– U.S. ––––, 133 S.Ct. 1409, 1414,185 L.Ed.2d 495 (2013). In this civil suit,Cristopher and Lela Covey allege that sev-eral government officials violated theirFourth Amendment rights by enteringcurtilage—here, a walk-out basement patioarea attached to their home—in search ofmarijuana. In response, the defendantsclaim (among other things) that theirsearches were reasonable because they en-tered the curtilage only after viewing Mr.Covey from a proper vantage beyond thehome’s curtilage. The district court ulti-mately accepted the defendants’ character-ization of the searches, and so dismissedthe case. In doing so, the district courtfailed to construe the complaint in the lightmost favorable to the Coveys, as it mustwhen ruling on a Rule 12(b)(6) motion todismiss. Accordingly, we reverse and re-mand.

I.

The Coveys appeal the dismissal of theircomplaint for failure to state a claim. Ac-cordingly, we recount the facts as alleged


by the Coveys in their complaint, acceptingas true all well-pleaded facts. Owens v.Balt. City State’s Attorneys Office, 767F.3d 379, 388 (4th Cir.2014).

A.

The Coveys live in a privately set homein the rural village of Valley Grove, WestVirginia. Trees surround their home andobstruct it from view from any publicplace. For good measure, the couple hasconspicuously posted two ‘‘No Trespass-ing’’ signs along the private driveway lead-ing to their home.

A parking area for visitors is locatedoutside the home’s garage. The parkingarea is connected to the home’s front doorby a paved walkway running from theparking area’s left side. A yard abuts theparking area’s and home’s right side. Acovered ‘‘walk-out basement patio’’ at-tached to the home is also located on theright side, several feet from the driveway.1

J.A. 13.

B.

Around noon on October 21, 2009, RoyCrews, a field deputy for the tax assessorof Ohio County, West Virginia, entered theCoveys’ property to collect data to assessthe value of the property for tax purposes.Despite seeing the ‘‘No Trespassing’’signs, Crews continued up the driveway tothe Coveys’ house. He did so despiteWest Virginia’s ‘‘standard visitation proce-dures,’’ which provide that a tax data col-lector such as Crews ‘‘is not to enter’’ aproperty if it ‘‘is posted with ‘No Trespass-ing’ signs.’’ W. Va.Code. R. § 189–2–3.5.

After finding no one at the home, Crewsopened the front door and left a pamphletinside. He then searched the house’s cur-

tilage, including the walk-out basement pa-tio. There, Crews found marijuana. Afterleaving the residence, Crews contacted thecounty sheriff, Patrick Butler, to reportthat he found marijuana at the Coveys’house.

C.

After receiving Crews’s report, two lawenforcement officers went to the Coveys’house to investigate: Corporal Alex Espe-jo of the Ohio County Sheriff’s Office andDEA Special Agent Robert Manchas. Bythe time they arrived at the house, Mr.Covey had returned. According to thecomplaint, the officers ‘‘proceeded to parkon the private driveway of [the Coveys’]residence in an area not normally used forvisitor parking.’’ J.A. 13. They then‘‘proceed[ed] to enter curtilage, specificallythe walk-out basement patio area.’’ Id. ‘‘Itwas at that time that they came upon [Mr.Covey], who was working at his work-bench.’’ Id. Although the complaint doesnot expressly state when the officers firstsaw Mr. Covey, construing the above alle-gations in his favor, it is reasonable toinfer that they did not see him until afterentering the curtilage.

The officers then seized Mr. Covey andescorted him to their car ‘‘parked off thedriveway.’’ J.A. 13–14. After detainingMr. Covey, Corporal Espejo ‘‘re-enter[ed]the walk-out basement patio area and con-ducted a search of the area.’’ J.A. 14.Likewise, Special Agent Manchas ‘‘re-en-tered [the] walk-out basement patio area,opened the basement doors, leaned insideand took photographs[,] and proceeded toseize evidence.’’ Id.

After seizing Mr. Covey, Corporal Espe-jo, Special Agent Manchas, and other offi-

1. In opposition to a defendant’s motion todismiss, the Coveys submitted pictures of thisarea to the district court. Two of those pic-

tures are attached to this opinion as an ap-pendix.


cers (who arrived later) waited for severalhours to obtain a warrant to search thehouse. During that time, Mrs. Covey re-turned home, and an officer warned herthat she would be arrested if she enteredthe house. She was, however, allowed toleave the premises. An hour after leaving,Mrs. Covey allegedly returned and ‘‘waspromptly unreasonably seized’’ and inter-rogated. J.A. 15. After Corporal Espejoreturned with a search warrant, the Co-veys were arrested and jailed overnight.

D.

On March 30, 2010, Mr. Covey pleadedguilty in state court to manufacturing mar-ijuana. Pursuant to a plea agreement, thegovernment agreed not to ‘‘initiate anyprosecution it does or could have against[Mrs. Covey] for the events connected toor arising’’ from the couple’s arrest. J.A.44. On May 21, 2010, Mr. Covey wassentenced to home confinement for a peri-od of not less than one year and not morethan five years.

E.

On October 20, 2011, the Coveysbrought suit pro se in the district courtagainst several defendants, includingCrews, Sheriff Butler, Corporal Espejo,Special Agent Manchas, the Assessor ofOhio County, the Ohio County Sheriff’sOffice, and the Department of Justice(DOJ). The claims against these defen-dants, brought under 42 U.S.C. § 1983 andBivens,2 alleged that they violated the Co-veys’ Fourth Amendment rights by con-ducting an unreasonable search.3

Between March and June 2012, each ofthe defendants moved to dismiss the case.The parties filed a number of documents insupport of and in opposition to the defen-dants’ motions. For example, the DOJattached Mr. Covey’s plea agreement inthe criminal case, among other documents.The Coveys did not object to the inclusionof material outside the complaint. Rather,they themselves also attached several doc-uments to their opposition to the motionsto dismiss, including 11 annotated picturesof their house and surrounding property,as well as the criminal complaint filedagainst Mr. Covey.4

In November 2012, a magistrate judgeissued a report and recommendation (R &R) suggesting that the district court dis-miss all federal claims and decline to exer-cise jurisdiction over the state-law claims.Two months later, the district judge ‘‘af-firm[ed] and adopt[ed]’’ the R & R, whilesupplementing the R & R’s statement offacts and reasoning. J.A. 66–84. The dis-trict court concluded that neither the fielddeputy nor any officer violated the FourthAmendment. Thus, it did not address theother arguments made by the defendantsin their motions to dismiss, including: (A)whether any defendant would be entitledto qualified immunity from suit, see infraPart III.B, and (B) whether the Heck5

doctrine would bar the Coveys from bring-ing their claims, see infra Part III.C. Thisappeal followed.

II.

We review a district court’s grant of amotion to dismiss de novo. Owens, 767

2. Bivens v. Six Unknown Named Agents of Fed.Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.1999, 29 L.Ed.2d 619 (1971).

3. The Coveys also brought state-law causes ofaction that are not at issue in this appeal.

4. Although the district court did not expresslyconvert the motions into motions for sum-mary judgment, the district court did rely onmany of these documents in granting dismiss-al under Rule 12(b)(6).

5. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct.2364, 129 L.Ed.2d 383 (1994).


F.3d at 388. In deciding such a motion,we ‘‘ ‘accept as true all of the factual alle-gations contained in the complaint,’ and‘draw all reasonable inferences in favor ofthe plaintiff.’ ’’ Id. (quoting E.I. du Pont deNemours & Co. v. Kolon Indus., Inc., 637F.3d 435, 440 (4th Cir.2011)). To prevail, aplaintiff must ‘‘state a claim to relief that isplausible on its face.’’ Id. (quoting Ash-croft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.1937, 173 L.Ed.2d 868 (2009)). A claim isplausible if ‘‘the plaintiff pleads factualcontent that allows the court to draw thereasonable inference that the defendant isliable for the misconduct alleged.’’ Id.(quoting Iqbal, 556 U.S. at 678, 129 S.Ct.1937).

III.

We begin by addressing the Coveys’contention that the district court erred infinding that the complaint failed to pleadplausible claims for violations of theFourth Amendment. In the interest ofjudicial economy, we will also consider thedefendants’ legal arguments that the dis-trict court did not reach-namely, qualifiedimmunity and whether Heck bars the Co-veys’ claims. We address each argumentin turn.

A.

Although the district court correctlystated the governing Fourth Amendmentlegal framework, it incorrectly applied thatframework to the complaint’s allegations.We conclude that the complaint, properlyconstrued, pleads plausible claims for vio-lations of the Fourth Amendment.

[1–3] The Fourth Amendment protectshomes and the ‘‘land immediately sur-rounding and associated’’ with homes,known as curtilage, from unreasonablegovernment intrusions. Oliver v. UnitedStates, 466 U.S. 170, 180, 104 S.Ct. 1735,

80 L.Ed.2d 214 (1984). ‘‘This area aroundthe home is ‘intimately linked to the home,both physically and psychologically,’ and iswhere ‘privacy expectations are mostheightened.’ ’’ Jardines, 133 S.Ct. at 1415(quoting California v. Ciraolo, 476 U.S.207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210(1986)). As with homes themselves, ‘‘prob-able cause, and not reasonable suspicion, isthe appropriate standard for searches ofthe curtilage.’’ Rogers v. Pendleton, 249F.3d 279, 287 (4th Cir.2001). ‘‘[W]e pre-sume a warrantless search of curtilage tobe unreasonable.’’ Carman v. Carroll, 749F.3d 192, 197 (3d Cir.2014), rev’d on othergrounds, ––– U.S. ––––, 135 S.Ct. 348, 190L.Ed.2d 311 (2014) (per curiam).

For purposes of their motions to dis-miss, the defendants do not dispute thatCrews intruded into the Coveys’ home andcurtilage, and the officers into the Coveys’curtilage. Instead, they assert similar de-fenses. Specifically, the officers arguethat their conduct falls within the knock-and-talk exception to the Fourth Amend-ment’s warrant requirement. Crews con-tends that he reasonably intruded on theproperty to achieve certain governmentalinterests. As set forth below, neither ofthese arguments is persuasive.

1.

[4, 5] We first address the officers’ re-liance on the so-called knock-and-talk ex-ception to the Fourth Amendment’s war-rant requirement. Under this exception,‘‘a police officer not armed with a warrantmay approach a home and knock, preciselybecause that is ‘no more than any privatecitizen might do.’ ’’ Jardines, 133 S.Ct. at1416 (quoting Kentucky v. King, ––– U.S.––––, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865(2011)). Thus, in the typical situation,there is an ‘‘implicit license TTT to ap-proach the home by the front path, knockpromptly, wait briefly to be received, and


then (absent invitation to linger longer)leave.’’ Id. at 1415. An officer may alsobypass the front door (or another entrypoint usually used by visitors) when cir-cumstances reasonably indicate that theofficer might find the homeowner else-where on the property.6 Pena v. Porter,316 Fed.Appx. 303, 313 (4th Cir.2009) (cit-ing Alvarez v. Montgomery Cnty., 147F.3d 354, 356 (4th Cir.1998)). Critically,however, the right to knock and talk doesnot entail a right to conduct a generalinvestigation on a home’s curtilage. SeeRogers, 249 F.3d at 289.

[6] Here, the officers claim that theywere justified in bypassing the front doorbecause they saw Mr. Covey on the walk-out basement patio area, thus giving theman implied invitation to approach him. Ifthe officers first saw Mr. Covey from anon-curtilage area, they may well prevailunder the knock-and-talk exception atsummary judgment. But, properly con-strued in the Coveys’ favor, the complaintalleges that the officers saw Mr. Coveyonly after they entered the curtilage. Inresponding to the defendants’ motions todismiss, the Coveys reiterated this point,stating that the ‘‘only way [the officers]could have observed [Mr. Covey] at hisworkbench or detected the smell of mari-juana was if they were standing right on[the Coveys’] rear walkout patio area in

[the] backyard.’’ Doc. 48, at 16. Indeed,nothing in the complaint suggests that theofficers had reason to believe that Mr.Covey was in the patio area before pro-ceeding there. Thus, applying the properRule 12(b)(6) standard, we find that theCoveys have plausibly alleged that the offi-cers violated their Fourth Amendmentrights by entering and searching the curti-lage to the side of their house without awarrant.

In concluding otherwise, the districtcourt appears to have accepted the offi-cers’ assertions that they saw Mr. Coveybefore they entered the curtilage. In do-ing so, the district court primarily reliedon matters outside the complaint, includingphotographs of the Coveys’ home andstatements made by the officers in thecriminal case. See J.A. 76 (stating that thephotographs ‘‘make clear that the view ofthe backyard patio area [and Mr. Coveywas] not impeded from the vantage pointof the parking area near the garage of thehome’’); id. (noting that ‘‘the statements ofCorporal Espejo submitted in the criminalcomplaint indicate that the officers wereable to see Mr. Covey ‘standing under thedeck near the rear basement walk outdoor’ upon their arrival’’). At the 12(b)(6)stage, the court should have simply ig-nored this material.7 In any event, when

6. For example, in Alvarez v. MontgomeryCounty, police had received a complaintabout an ‘‘underage drinking party.’’ 147F.3d 354, 356 (4th Cir.1998). Officers re-sponded to notify the party house’s home-owner about the complaint and ask that noone drive while intoxicated. Id. at 358.When the officers arrived, they first went tothe house’s front stoop, where they noticed asign that read ‘‘Party In Back’’ and had anarrow pointing toward the backyard. Id. at357. The officers bypassed the front door andentered the backyard. Id. Because the offi-cers had a legitimate purpose for entering thebackyard—unconnected with a search of thepremises—and a sign directed them to the

backyard to find the homeowner, the knock-and-talk exception applied. Id. at 358–59.

7. Subject to certain exceptions not relevanthere, Rule 12(d) of the Federal Rules of CivilProcedure requires that a court treat a Rule12(b)(6) motion as one for summary judgmentif ‘‘matters outside the pleadings are present-ed to and not excluded by the court.’’ Thedistrict court did not convert any motion intoone for summary judgment, but instead as-sessed all motions under Rule 12(b)(6). Al-though some of the parties’ filings (such asthe criminal complaint) could have been usedfor limited purposes (such as the fact that Mr.Covey was charged and convicted for manu-


construed in the light most favorable tothe Coveys, none of the extraneous materi-al compels dismissal.

First, even assuming the district courtproperly considered the photographs ofthe Coveys’ home, it erred in finding thatthey conclusively support the officers’ nar-rative. The photographs do not reveal theofficers’ exact position and line of vision;Mr. Covey’s exact position, his posture,and whether an object obstructed the offi-cers’ view of his body; or whether theofficers could smell marijuana. As such,the photos do not expressly contradict thecomplaint’s allegations that the officersonly saw Mr. Covey after intruding intothe curtilage. J.A. 13.

Corporal Espejo’s statements in thecriminal complaint also do not compel theconclusion that the officers could see Mr.Covey from a proper vantage. CorporalEspejo simply stated that the officers sawMr. Covey ‘‘upon arrival.’’ See J.A. 33(‘‘Upon arrival officers observed [Mr. Co-vey] standing under the deck near the rearbasement walk out door.’’). Because‘‘upon’’ can mean ‘‘very soon after,’’ thestatement does not negate the possibilitythat the officers arrived, went straight tothe curtilage, and only then saw Mr. Co-vey. Upon Definition, Dictionary.com,dictionary.reference.com/browse/upon. Infinding otherwise, the district court ig-nored both the familiar Rule 12(b)(6) stan-dard (requiring the court to construe thecomplaint in the light most favorable to theplaintiffs) and the well-settled rule thatcourts should construe pro se complaints

liberally. Brown v. N.C. Dep’t of Corr.,612 F.3d 720, 722 (4th Cir.2010).

2.

[7] We next address Crews’s argu-ments that his intrusion did not violate theFourth Amendment. The pertinent inqui-ry is whether Crews’s actions were ‘‘undu-ly intrusive,’’ based on the intrusion’smethods and purpose. Widgren v. MapleGrove Twp., 429 F.3d 575, 583, 585 (6thCir.2005). This entails a ‘‘flexible stan-dard, ‘balancing the need to search againstthe invasion which the search entails.’ ’’Turner v. Dammon, 848 F.2d 440, 445–46(4th Cir.1988) (quoting Camara v. Mun.Court of City & Cnty. of S.F., 387 U.S. 523,536–37, 87 S.Ct. 1727, 18 L.Ed.2d 930(1967)), abrogated on other grounds byJohnson v. Jones, 515 U.S. 304, 308–09,115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).‘‘[W]e should construe the Fourth Amend-ment ‘in a manner which will conservepublic interests as well as the interests andrights of individual citizens.’ ’’ Taylor v.Mich. Dep’t of Natural Res., 502 F.3d 452,457 (6th Cir.2007) (quoting Kyllo v. UnitedStates, 533 U.S. 27, 40, 121 S.Ct. 2038, 150L.Ed.2d 94 (2001)).

[8] As an initial matter, we agree withCrews that his violation of the State’s ad-ministrative regulation (prohibiting datacollectors from entering a property wherea ‘‘No Trespassing’’ sign is posted) doesnot per se amount to a violation of theFourth Amendment. See Hovater v. Rob-inson, 1 F.3d 1063, 1068 n. 4 (10th Cir.1993) (citing Davis v. Scherer, 468 U.S.183, 194, 104 S.Ct. 3012, 82 L.Ed.2d 139

facturing marijuana), any disputed testimonycontained therein should have been ignoredin favor of the complaint’s allegations. SeeJ.A. 33 (containing Corporal Espejo’s narra-tive of his encounter with Mr. Covey, whichthe district court construed in a way thatconflicts with the Coveys’ allegations). Per-haps more simply, the court could have whol-

ly ignored such attachments and relied exclu-sively on the complaint. See Fed.R.Civ.P.12(d) (providing an option for a court to ei-ther (A) consider ‘‘matters outside the plead-ings’’ and treat a motion to dismiss ‘‘as onefor summary judgment’’ or (B) exclude thematters).


(1984)) (noting that a mere ‘‘failure to ad-here to administrative regulations does notequate to a constitutional violation’’). Thisargument is not dispositive, however, be-cause Crews did more than merely ignorethe ‘‘No Trespassing’’ signs.

[9] The complaint alleges that Crewscommitted three distinct intrusions: (1)enter onto the Coveys’ property; (2) enterinto their house; and (3) search the curti-lage. Even if the first intrusion was justi-fied under the open-fields doctrine, seeJardines, 133 S.Ct. at 1414 (noting thatthe Fourth Amendment does not protectopen fields from government investiga-tions), the other two were clearly not.What began as a mere regulatory violationturned into an affront to the Coveys’ con-stitutional rights when Crews entered thecurtilage and the Coveys’ home.

We do not suggest that the administra-tive regulations are irrelevant here, howev-er. To the contrary, they directly rebutCrews’s argument that his intrusion wasjustified by the government’s interest incollecting tax data. Section 189–2–3.5 ofthe West Virginia Code of State Rulesdeems the citizen’s privacy interest su-preme when he or she posts a ‘‘No Tres-passing’’ sign. As a result, the govern-mental interest compelling Crews’s actionswas minimal. In turn, the Coveys’ privacyinterest—the right not to have state actorsunreasonably enter their home and rum-mage around their property—is signifi-cant. Thus, the Coveys have pleaded aplausible claim that Crews conducted anunreasonable search of their home andcurtilage.

In finding that Crews did not searchanything for which the Coveys had an‘‘objectively reasonable expectation of pri-vacy,’’ the R & R said:

nothing unduly intrusive occurred: theassessor used ordinary methods to ob-serve the house; there is no evidence he

craned his neck or was straining to ob-serve anything; and although Plaintiffsallege that he did open the door, it wasonly to drop a pamphlet inside and themarijuana he observed was in the back-yard, not inside.

J.A. 59. Again, the district court appliedthe wrong standard at the motion-to-dis-miss stage. The Coveys only needed toplead facts that constitute a plausible claimthat Crews violated their Fourth Amend-ment rights, Owens, 767 F.3d at 388, notproduce evidence that Crews ‘‘craned hisneck or was straining to observe any-thing,’’ J.A. 59. Indeed, in assuming thatthe ‘‘assessor used ordinary methods toobserve the house’’ and that he entered theCoveys’ house ‘‘only to drop a pamphletinside,’’ the district court made inferencesfavorable to Crews, not the Coveys. Id.

B.

All the defendants also argue that theyare entitled to qualified immunity. Al-though the district court did not rule onthis issue and instead found that there wasno Fourth Amendment violation in thefirst instance, the argument was raisedbelow and is therefore properly before theCourt. See Singleton v. Wulff, 428 U.S.106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826(1976).

[10, 11] Qualified immunity ‘‘shieldsfederal and state officials from moneydamages unless a plaintiff pleads factsshowing (1) that the official violated a stat-utory or constitutional right, and (2) thatthe right was ‘clearly established’ at thetime of the challenged conduct.’’ Ashcroftv. al–Kidd, ––– U.S. ––––, 131 S.Ct. 2074,2080, 179 L.Ed.2d 1149 (2011) (quotingHarlow v. Fitzgerald, 457 U.S. 800, 818,102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).‘‘To be clearly established, a right must besufficiently clear ‘that every reasonable of-


ficial would have understood that what heis doing violates that right.’ ’’ Reichle v.Howards, ––– U.S. ––––, 132 S.Ct. 2088,2093, 182 L.Ed.2d 985 (2012) (quoting al–Kidd, 131 S.Ct. at 2078) (brackets andinternal quotation marks omitted).

[12] At this stage, we cannot concludethat the defendants are entitled to quali-fied immunity. As to the police officers,the Supreme Court has held that no rea-sonable officer can ‘‘claim to be unaware ofthe basic rule, well established by ourcases, that, absent consent or exigency, awarrantless search of the home is pre-sumptively unconstitutional.’’ Groh v. Ra-mirez, 540 U.S. 551, 564, 124 S.Ct. 1284,157 L.Ed.2d 1068 (2004). As we have rec-ognized for over a decade, ‘‘the curtilage isentitled to the same level of FourthAmendment protection extended to thehome.’’ Rogers, 249 F.3d at 287. As al-leged in the complaint, the officers violatedclearly established law by proceeding di-rectly to where they suspected marijuanawould be found and without any reason tobelieve that they would find Mr. Coveythere. Thus, they are not entitled to qual-ified immunity at this stage.

[13] The tax assessor’s claim to quali-fied immunity is a closer call. On onehand, ‘‘an official who performs an actclearly established to be beyond the scopeof his discretionary authority is not enti-tled to claim qualified immunity under§ 1983,’’ and the Supreme Court has‘‘made clear that determination of thescope of an official’s authority dependsupon an analysis of the statutes or regula-tions controlling the official’s duties.’’ Inre Allen, 106 F.3d 582, 593, 595 (4th Cir.1997) (citing Doe v. McMillan, 412 U.S.306, 321–24, 93 S.Ct. 2018, 36 L.Ed.2d 912(1973), and Barr v. Matteo, 360 U.S. 564,

574–75, 79 S.Ct. 1335, 3 L.Ed.2d 1434(1959)). Arguably, by entering into thecurtilage and house despite the presence of‘‘No Trespassing’’ signs and a regulation’sexplicit directive to leave, the tax assessorexceeded his discretionary authority andtherefore should not be entitled to quali-fied immunity. On the other hand, theSupreme Court has repeatedly instructedthat we should not ‘‘define clearly estab-lished law at a high level of generality.’’al–Kidd, 131 S.Ct. at 2084.

[14] The parties have failed to offerany caselaw involving facts substantiallysimilar to this case. Thus, it may be un-warranted to deny qualified immunity onthe basis that ‘‘a reasonable [civil servant]would have known’’ that merely enteringinto the curtilage, in contravention to aregulatory directive, violated a clearly es-tablished right under the Constitution.Wall v. Wade, 741 F.3d 492, 498 (4th Cir.2014) (quoting Ridpath v. Bd. of GovernorsMarshall Univ., 447 F.3d 292, 306 (4thCir.2006)). As already stated, however,the exact manner in which Crews searchedthe property is unknown and should bedeveloped through discovery. Therefore,at this stage, Crews is not entitled toqualified immunity.

C.

Lastly, the defendants claim that theCoveys’ § 1983 and Bivens8 claims arebarred by Heck v. Humphrey, 512 U.S.477, 114 S.Ct. 2364, 129 L.Ed.2d 383(1994). Although the district court did notrule on this issue, it was raised before thedistrict court and has been preserved forconsideration on appeal. See Singleton,428 U.S. at 121, 96 S.Ct. 2868.

8. Although Heck involved only a § 1983claim, 512 U.S. at 479, 114 S.Ct. 2364, wehave construed Heck to apply equally to Bi-

vens claims, Poston v. Shappert, 222 Fed.Appx. 301, 2007 WL 1031695, at *1 (4thCir.2007) (per curiam).


[15] We have imposed two require-ments for Heck to bar a § 1983 or Bivensclaim. First, ‘‘a judgment in favor of theplaintiff [must] necessarily imply the inval-idity of [a plaintiff’s] conviction or sen-tence.’’ Heck, 512 U.S. at 487, 114 S.Ct.2364. Second, the claim must be broughtby a claimant who is either (i) currently incustody or (ii) no longer in custody be-cause the sentence has been served, butnevertheless could have practicably soughthabeas relief while in custody. See Wilsonv. Johnson, 535 F.3d 262, 267–68 (4th Cir.2008); Bishop v. Cnty. of Macon, 484 Fed.Appx. 753, 755 (4th Cir.2012) (per curiam).

[16] To the extent Mr. Covey’s claimschallenge the defendants’ searches of hishome and curtilage, we conclude that theydo not necessarily imply the invalidity ofhis conviction and thus are not barred byHeck. As Heck itself recognizes, civilclaims based on unreasonable searches donot necessarily imply that the resultingcriminal convictions were unlawful. Heck,512 U.S. at 487 n. 7, 114 S.Ct. 2364. A validconviction can still result after an improp-er search when doctrines such as indepen-dent source, inevitable discovery, or harm-less error would alleviate the effect of theimproper search. See id. Moreover, acivil-rights claim does not necessarily im-ply the invalidity of a conviction or sen-tence if (1) the conviction derives from aguilty plea rather than a verdict obtainedwith unlawfully obtained evidence and (2)the plaintiff does not plead facts inconsis-tent with guilt. E.g., Lockett v. Ericson,

656 F.3d 892, 897 (9th Cir.2011); Easter-ling v. Moeller, 334 Fed.Appx. 22, 24 (7thCir.2009). This is the case here. Mr. Co-vey never contested his guilt. Nor did heever seek to suppress the evidence under-lying his conviction. Thus, relief under§ 1983 or Bivens for the alleged illegalsearches does not implicate the proprietyof Mr. Covey’s conviction, and Heck acts asno bar.

On the other hand, some of Mr. Co-vey’s claims would imply the conviction’sinvalidity. For example, in a portion ofthe complaint, Mr. Covey alleges that hewas falsely imprisoned and deprived ofhis liberty. J.A. 19–20. We construe thisallegation as pertaining to Mr. Covey’speriod of home confinement. As to Mr.Covey, but not necessarily Mrs. Covey,see Bishop, 484 Fed.Appx. at 756 (findingHeck inapplicable to the claims of a for-mer prisoner’s mother), relief for this ‘‘in-jury’’ would necessarily imply the invalidi-ty of Mr. Covey’s conviction.9 See Heck,512 U.S. at 487 n. 7, 114 S.Ct. 2364 (stat-ing that damages are recoverable for onlyan ‘‘actual, compensable injury,’’ which‘‘does not encompass the ‘injury’ of beingconvicted and imprisoned (until [the] con-viction has been overturned)’’). That con-clusion alone, however, does not end ourinquiry.

We have held once—in an unpublishedopinion—that Heck bars a claim that im-plies the invalidity of a conviction or sen-tence even if the claimant is no longer incustody,10 but only if the claimant could

9. Indeed, at oral argument, appointed counselfor the Coveys conceded that ‘‘Mr. Covey can-not recover damages from the criminal pro-ceeding’’ and said that the Coveys were notasking for such relief.

10. From its inception, Heck has clearly ap-plied to prisoners currently in custody. SeeHeck, 512 U.S. at 478, 114 S.Ct. 2364 (statingthe issue as ‘‘whether a state prisoner’’ can

bring a challenge). The Supreme Court hasnot, however, definitively decided whetherHeck ever applies if a claimant has served hisor her sentence and is no longer in custody,as is the case here.

On one hand, a footnote in Heck suggeststhat its requirements apply even to claimantsthat are no longer in custody. See id. at 490n. 10, 114 S.Ct. 2364 (‘‘We think the principlebarring collateral attacks—a longstanding


have practicably sought habeas relief whilein custody and failed to do so.11 Bishop,484 Fed.Appx. at 755. At this stage, it isunclear whether Mr. Covey actually pur-sued or was practicably able to pursuehabeas relief for his conviction. Mr. Co-vey pleaded guilty on March 30, 2010, andwas thereafter sentenced to home confine-ment for a period of not less than one yearand no more than five years. The Coveysfiled this action on October 20, 2011, afterMr. Covey completed his term of homeconfinement. If Mr. Covey was unable topursue habeas relief because of insufficienttime or some other barrier, then Heck iswholly inapplicable to the Coveys’ § 1983and Bivens claims. Because we cannotmake this determination on the record, wehold that Heck does not bar any of Mr.Covey’s claims for purposes of the defen-dants’ motions to dismiss. We leave it to

the district court on remand to decide atsummary judgment whether Heck barsany of Mr. Covey’s claims.

IV.

In summary, the Coveys have sufficient-ly pleaded under § 1983 and Bivens thatCrews, Corporal Espejo, and SpecialAgent Manchas violated clearly establishedlaw under the Fourth Amendment. Onremand, the district court should considerwhether Heck applies to Mr. Covey, basedon his status as a person formerly in custo-dy. If the district court properly rulesthat Heck applies despite Mr. Covey’s sta-tus as such a person, then Heck bars Mr.Covey from seeking relief for injuries aris-ing from his conviction and sentence, butnot relief for a subset of the injuries al-leged. The district court’s orders are re-

and deeply rooted feature of both the com-mon law and our own jurisprudence—is notrendered inapplicable by the fortuity that aconvicted criminal is no longer incarcerat-ed.’’). On the other hand, Justice Souterwrote a concurring opinion in Heck, joined bythree justices, concluding just the opposite.Heck, 512 U.S. at 492, 502, 114 S.Ct. 2364(Souter, J., concurring in judgment). Later,in Spencer v. Kemna, four justices supportedthe ‘‘better view’’ in Justice Souter’s concur-rence in Spencer that a prisoner no longer incustody should be able to challenge the con-stitutionality of his or her conviction. 523U.S. 1, 18–25, 118 S.Ct. 978, 140 L.Ed.2d 43(1998). Although circuits are split on thisissue, our Court follows the majority view—based on Judge Souter’s analysis—that Heckdoes not apply to claimants no longer in cus-tody and thus without access to habeas relief,at least when the claimant is not responsiblefor failing to seek or limiting his own accessto 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 isinapplicable ‘‘at least where [an] inability [toobtain habeas relief] is not due to the petition-er’s own lack of diligence’’ (emphasis added)).

11. Because of inadequate briefing by the par-ties on this issue, we do not address whethera Heck bar properly applies to a person for-

merly in custody, even if the person couldhave practicably sought habeas relief. Wesimply note that the binding precedent fromthe Supreme Court and in this Circuit doesnot clearly impose a ‘‘practicable diligence’’requirement for former prisoners. See Spenc-er, 523 U.S. at 21, 118 S.Ct. 978 (Souter, J.,concurring) (noting that Heck should not bara claim if it would be ‘‘impossible as a matterof law’’ for a person to satisfy the favorable-termination requirement, without specifyingwhether it should apply if habeas relief wasever possible); Wilson, 535 F.3d at 268 (not-ing that ‘‘courts have taken a keen interest’’ inwhether ‘‘a prisoner could have filed a habe-as’’ petition, but not imposing a practicable-diligence requirement). But see Burd v. Ses-sler, 702 F.3d 429, 436 (7th Cir.2012) (declin-ing to permit ‘‘a plaintiff who ignored hisopportunity to seek collateral relief while in-carcerated to skirt the Heck bar simply bywaiting to bring a § 1983 claim until habeasis no longer available’’); Guerrero v. Gates,442 F.3d 697, 705 (9th Cir.2006) (findingHeck applicable, despite the legal impossibili-ty of pursuing habeas relief, because ‘‘failuretimely to achieve habeas relief is self-im-posed’’).

199ILUNGA v. HOLDERCite as 777 F.3d 199 (4th Cir. 2015)

versed. The case is remanded for furtherproceedings.

REVERSED AND REMANDED

Appendix

Appendix—Continued

,

Faustin Mukadi ILUNGA, Petitioner,

v.

Eric H. HOLDER, Jr., AttorneyGeneral, Respondent.

No. 13–2064.

United States Court of Appeals,

186 777 federal reporter, 3d series186 777 federal reporter, 3d series anticipate the myriad...

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