THE FOURTH AMENDMENT LIVES IN THE FOURTH CIRCUIT!
The Fourth Circuit issued an opinion at the end of January that is really remarkable. And it’s remarkable because, in an age where citizens are getting somewhat (and unfortunately) used to invasions of their privacy, the 4th Circuit clearly puts the kibosh on this kind of police-creep. Covey v. Ohio County, 2015 WL 309598 (published January 26, 2015) is a very welcome case for those of us practicing in the circuit.
The case came before the Court on an appeal from a 12(b) motion to dismiss. The district court judge bounced the case out of court, and the Plaintiffs appealed. Factually, it appears from the opinion, that Mr. and Mrs. Covey lived in a nice remote part of West Virginia. They had a sign on their property that stated “No Trespassing.” A tax assessor entered the property to collect data regarding the value of the property for tax purposes, and despite the No Tresspassing sign. Once there, he observed marijuana plants. He then called law enforcement who promptly came out to investigate. Mr. Covey ultimately pleaded guilty to distribution of MJ and received 1-5 years home confinement.
The opinion reiterates the importance of the 4th Amendment and the right not to have people schlepping on your property if you don’t want them there. It also reaffirms that a home’s curtilage is entitled to this same level of protection. Law enforcement argued that it was entitled to enter the property under the theory that allows LE to conduct “knock-and-talks” without a warrant. The Court quickly rejected that argument because “the right to knock and talk does not entail a right to conduct a general investigation on a home’s curtilage.” Id. 5. At this stage of the litigation, however (that is, on a motion to dismiss), it is not clear whether they first saw Mr. Covey from the curtilage or non-curtilage area. That is an issue to be resolved later. The Court criticized the district court for making factual determinations on this issue that favored the defendants and not the Coveys.
There were three distinct intrusions in this case– 1) entering onto the property, 2) entering into the Covey’s home, and 3) searching the curtilage. As the Court stated regarding the tax assessor: “What began as a mere regulatory violation turned into an affront to the Covey’s constitutional rights when [tax assessor] entered the curtilage and the Covey’s home.” Nice language, there.
Law enforcement and the tax assessor then argued they were entitled to qualified immunity (which shields a number of state actors unless a plaintiff can show that 1) official violated statutory/ constitutional right, 2) that was well established at time of violation). The Court found again that “at this stage” it was not clear that they would be entitled to immunity since, duh, they really should have known that they were not entitled to go schlepping on someone’s property without a warrant.
The last defense that the defendants raised is the Heck bar. In other words, since Mr. Covey pleaded guilty to the crime, he’s forbidden from challenging the conduct that gave rise to it. Heck v. Humphrey, 512 U.S. 477 (1994) will bar a 1983 claim unless Plaintiff can show 1) judgement in favor of the P necessarily implies the invalidity of the conviction or sentence, and 2) claim must be brought by claimant who is 1) currently in custody, 2) no longer in custody b/c sentence has been served but nevertheless could have practicably sought habeas relief while in custody. Since Mr. Covey is not claiming that his conviction was unlawful, Heck does not bar his suit for damages. The Court did find that the issue of Heck’s applicability would have to be determined on remand.
The take away here, though, is that the 4th Amendment is alive and strong in the 4th Circuit. This is a published opinion, and one that informs both the bench and bar that colorable claims of civil rights violations should not be dismissed at the 12(b) stage, and even when the Plaintiff pleaded guilty to the crime. Important case, all around.