Indiana Law Review


The Emergence of Divergence: The Federal
Court's Struggle to Apply Heck v. Humphrey

to § 1983 Claims for Illegal Searches

Paul D. Vink
#

Introduction

Section 1983
1

claims arising from an alleged illegal search or seizure of

property have afforded scores of convicted criminals the opportunity to attack

their convictions collaterally through a civil suit for damages. Meanwhile, other

criminals, despite equally meritorious § 1983 illegal search claims, have found

the federal courthouse doors in theirjurisdictions closed. The federal courts have
failed to consistently apply federal law in an area where litigation is

commonplace, as evidenced by the U.S. Supreme Court's recent remark that §
1983 claims are one of the "most fertile sources of federal-court prisoner

litigation."
2

In light ofthe frequency of § 1 983 claims for an alleged unreasonable search

or seizure of property, the question that has divided the United States Circuit

Courts of Appeals is the following: can a person pursue a § 1983 claim arising

from an alleged illegal search and seizure while the criminal case is still pending

or before the criminal conviction has been invalidated or reversed in some way?
Stated another way, is a § 1983 claimant unequivocally barred from bringing a

civil suit for damages arising from an alleged unreasonable search before the

criminal proceeding has been resolved in such a way that demonstrates the
invalidity ofthe search? This issue has yielded a federal circuit court split

3
and

is the subject of this Note.

Neither the text of § 1983 nor the statutory history is particularly helpful in

resolving the technical enigma ofwhen a civil suit is proper in light ofa previous
conviction. Section 1983 reads in relevant part:

Every person who, under color ofany statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

* J.D. Candidate, 2002, Indiana University School of Law—Indianapolis; B.A., 1998,
Northwestern College, Orange City, Iowa.

1

.

"Section 1 983" is widely used by lawyers and throughout this Note as shorthand for the

civil rights statute codified as 42 U.S.C. § 1 983 (Supp. V 1 999). See infra text accompanying notes
4-6.

2. Heck v. Humphrey, 5 1 2 U.S. 477, 480 ( 1 994).

3. Harvey v. Waldron, 210 F.3d 1008, 101 5 (9th Cir. 2000) (noting the Second and Sixth

Circuits disagree with the Seventh, Eighth, Tenth, and Eleventh Circuits regarding the propriety of

bringing a § 1983 claim for an alleged illegal search before the original conviction has been

invalidated); Salts v. Moore, 107 F. Supp. 2d 732, 737 (N.D. Miss. 2000) (referencing the current

circuit split), appeal dismissed by 250 F. 3d 741 (5th Cir. 2001).



1086 INDIANA LAW REVIEW [Vol. 35:1085

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .
4

Section 1 983 was originally drafted as part ofthe Civil Rights Act of 1 87 1 , in the
wake of the Civil War, in an effort by Congress to provide a civil remedy for
minorities and their supporters who were victimized by state actors under the
control ofthe Ku Klux Klan.5 Section 1983 created a means for all United States
citizens, irrespective of race, to recover damages if claimant can prove that a
state actor violated her constitutional rights by failing or refusing to enforce state
law.

6

This Note will explain and analyze the two divergent schools ofthought that
have polarized the federal circuit courts. Part I will introduce the reader to Heck
v. Humphrey,

1
a 1994 Supreme Court case that set out to resolve when § 1983

claims can be appropriately brought, but ironically spawned the current circuit

split. Part II of the Note will discuss in detail the case law that represents the

current dichotomy among the federal courts. Part IN will turn to a comparative
analysis of the two positions, including the strengths and weaknesses of each.
Part IV ofthe Note will offer the writer's opinion as to which circuit position is
preferable and which circuit position more accurately adheres to the language of
Heck v. Humphrey. Finally, the conclusion will provide some final thoughts
regarding the need for resolution of the current circuit split to restore the

consistent and uniform application offederal law to § 1983 illegal search claims.

The discussion in this Note regarding § 1983 claims is confined to civil
actions for damages arising from an alleged illegal search or seizure ofproperty.
This Note is not intended to provide an analysis ofother § 1 983 claims, including
claims for malicious prosecution, false arrest, excessive force, etc. Federal cases

regarding these § 1983 actions have been included only if they shed some light
on a circuit's position pertaining to illegal search claims.

It is imperative to understand from the outset the factual circumstances that

precipitate a § 1983 claim for an alleged illegal search. The following
hypothetical example is illustrative of the typical fact pattern. Jerry is a

suspected drug dealer who is stopped and frisked by the police on a street corner
after the police receive a tip that Jerry is selling drugs. The police search ofJerry
yields fifteen grams of cocaine and an illegal firearm in his coat pocket that is

subsequently seized. At the criminal hearing following Jerry's arrest, Jerry seeks

to have the drugs and handgun suppressed on the grounds that the police

conducted an illegal search and seizure. However, the trial courtjudge rules the

evidence admissible and Jerry is convicted of possession both of narcotics and

an illegal handgun. Following Jerry's conviction, which resulted largely from the

4. 42U.S.C. §1983.

5. See Eric J. Savoy, Heck v. Humphrey: What Should State Prisoners Use When Seeking

Damagesfrom State Officials . . . Section 1983 or Federal Habeas Corpus?, 22 NEW ENG. J. ON
Crim. & Civ. Confinement 109, 111 (1996).

6. Id. 111-12.

7. 512 U.S. 477 (1994).



2002] HECK v.HUMPHREY 1087

determination that the drugs and handgun were admissible evidence, Jerry brings

a civil action for damages pursuant to § 1983, alleging that the police officers

violated his Fourth Amendment constitutional right to be free from unreasonable
searches and seizures.

Under the current status ofthe law, Jerry's ability to go forward with his civil
claim for damages is contingent on the federal court in which Jerry brings the
claim. In the Seventh, Eighth, Tenth, and Eleventh Circuits Jerry would likely

be able to proceed with his civil claim for damages under § 1 983 notwithstanding

the facts that the criminal court ruled the evidence was admissible and that
Jerry's conviction has not been overturned.

8
Conversely, the Second, Fifth,

Sixth, and Ninth Circuits would likely bar the claim from proceeding unless and

until the criminal convictions (or admissibility of the drugs and handgun) had

been reversed.
9 The respective circuit court positions will be discussed in

significantly greater detail in Part II of this Note.

I. The Origin of the Debate: Heck v. Humphrey

The Supreme Court, in its 1994 decision Heck v. Humphrey™ dealt
extensively with a criminal's ability to bring a § 1983 claim prior to the reversal

ofthe criminal conviction. In Heck, the petitioner Roy Heck was convicted and
sentenced to fifteen years of incarceration for voluntary manslaughter of his

wife.
11 While Heck's appeal from his criminal conviction was pending, he filed

a § 1983 suit for damages that alleged the county prosecutors and a police
investigator conducted an "arbitrary investigation" that included the illegal

destruction of evidence that "was exculpatory in nature and could have proved

[petitioner's] innocence."
12

Both the federal district court and the Seventh

Circuit Court of Appeals dismissed Heck's § 1983 complaint because the suit

was perceived as a collateral challenge in a civil proceeding to the legality of
Heck's criminal conviction.

13
Following the Supreme Court's grant ofcertiorari,

8. See Beck v. City ofMuskogee Police Dep't, 195 F.3d 553 (lOthCir. 1999);Copusv.City

of Edgerton, 151 F.3d 646 (7th Cir. 1998); Simmons v. O'Brien, 77 F,3d 1093 (8th Cir. 1996);

Datz v. Kilgore, 51 F.3d 252 (1 1th Cir. 1995) (per curiam).

9. See Harvey v. Waldron, 210 F.3d 1008 (9th Cir. 2000); Schilling v. White, 58 F.3d 1081

(6th Cir. 1995); Mackey v. Dickson, 47 F.3d 744 (5th Cir. 1 995) (per curiam); Woods v. Candela,

47 F.3d 545 (2d Cir. 1995) (per curiam).

10. 512 U.S. 477(1994).

11. Mat 478.
1 2. Id. at 479 (internal quotation marks omitted) (alteration by court).

13. See id. at 479-80. The Seventh Circuit affirmed the district court's dismissal of the §

1983 claim, stating:

If, regardless of the relief sought, the plaintiff is challenging the legality of his

conviction, so that if he won his case the state would be obliged to release him even if

he hadn't sought that relief, the suit is classified as an application for habeas corpus and

the plaintiff must exhaust his state remedies, on pain of dismissal if he fails to do so.

Heck v. Humphrey, 997 F.2d 355, 357 (7th Cir. 1993), cert, granted, 510 U.S. 1068 (1994), affd



1088 INDIANA LAW REVIEW [Vol. 35: 1085

the Court was equally as clear as the Seventh Circuit had been in its
condemnation of the use of a civil suit to collaterally attack a criminal

conviction.
14 The Court held in unequivocal terms that

in order to recover damages for allegedly unconstitutional conviction or
imprisonment ... a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance ofa

writ of habeas corpus .... A claim for damages bearing that
relationship to a conviction or sentence that has not been so invalidated

is not cognizable under § 1983.
15

The Court, however, left the decision to the district court to determine if the
plaintiffs § 1983 claim would impugn the validity of the previous criminal
conviction:

[T]he district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or

sentence; if it would, the complaint must be dismissed unless the

plaintiff can demonstrate that the conviction or sentence has already

been invalidated. But if the district court determines that the plaintiffs

action, even if successful, will not demonstrate the invalidity of any

outstanding criminaljudgment against the plaintiff, the action should be

allowed to proceed . . . .
,6

The holding of Heck seemed straightforward: a § 1983 claim cannot be
pursued prior to a favorable termination of the conviction if a trial court judge

determined it would imply the invalidity ofthe criminal conviction.
17

However,

the Supreme Court went beyond the unambiguous holding to point out that not
all § 1983 claims are subject to the favorable termination requirement. In

footnote seven ofthe opinion, the Court cited an example of a § 1983 claim that

could go forward because the claim did not "necessarily imply the invalidity" of

the criminal conviction:

[A] suit for damages attributable to an allegedly unreasonable search

may lie even if the challenged search produced evidence that was

512 U.S. 477 (1994).

14. See Heck, 512 U.S. at 484*87.

15. Id. at 486-87 (footnote and citation omitted). The requirement that a conviction or

sentence must be shown to have been "reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into question

by a federal court's issuance ofa writ of habeas corpus," id. at 487, has been appropriately labeled

by Justice Souter as the "favorable termination" requirement and will be referred to as such

throughout this Note. See id. at 492 (Souter, J., concurring).

16. Id. at 487.

17. See id.



2002] HECK v. HUMPHREY 1 089

introduced in a state criminal trial resulting in the § 1983 plaintiffs still-

outstanding conviction. Because of doctrines like independent source
and inevitable discovery . . . such a § 1983 action, even if successful,
would not necessarily imply that the plaintiffs conviction was
unlawful.

18

Footnote seven of the Heck opinion is responsible for the current rift in the
circuit courts.

19
The Seventh, Eighth, Tenth, and Eleventh Circuits have taken

the position that "footnote seven creates a general exception" for § 1983 illegal

search and seizure claims to the general rule articulated in Heck that § 1983
claims are barred if the trial court determines it is a collateral attack on the

criminal conviction.
20

Whereas other § 1983 causes of action like excessive
force or malicious prosecution are prohibited under Heck, absent a showing the

claim will not impugn the validity ofthe criminal conviction, a § 1983 claim for
an alleged illegal search can go forward regardless of the status ofthe criminal

conviction because it will not necessarily imply its invalidity.

While the Seventh, Eighth, Tenth, and Eleventh Circuits read footnote seven
as a blanket exception, the Second, Fifth, Sixth, and Ninth Circuits read footnote

seven as merely an example ofa § 1 983 claim that would be allowed to proceed
within the framework of the analysis set forth in Heck? x To the latter circuit
courts, footnote seven does not alter the usual Heck requirements that determine
whether a § 1983 claim for an alleged illegal search and seizure can proceed.

22

A claim for an alleged illegal search, like any other § 1983 action, must show that
it does not undermine the validity ofthe prior criminal conviction or the claimant

will be prohibited from bringing the claim.
23

Thus, footnote seven, according to

the Second, Fifth, Sixth, and Ninth Circuit Courts, is merely illustrative of a §
1 983 claim that could go forward despite the fact that the criminal conviction has
not been reversed or invalidated in any way.

24

18. 7(*at487n.7.

19. Salts v. Moore, 107 F. Supp. 2d 732, 737 (N.D. Miss. 2000) (noting the current circuit

split regarding the interpretation of footnote seven of the Heck opinion), appeal dismissed by 250

F.3d 741 (5th Cir. 2001).

20. Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000); see also Beck v. City of

Muskogee Police Dep't, 195 F.3d 553 (10th Cir. 1999); Copus v. City of Edgerton, 151 F.3d 646

(7th Cir. 1998); Simmons v. O'Brien, 77 F.3d 1093 (8th Cir. 1996); Date v. Kilgore, 51 F.3d 252

(1 lth Cir. 1995) (per curiam).

21. See/farvey,210F.3datl015; accord Schilling v. White, 58 F.3d 1081 (6th Cir. 1995);

Mackey v. Dickson, 47 F.3d 744 (5th Cir. 1995) (per curiam); Woods v. Candela, 47 F.3d 545 (2d

Cir. 1995) (per curiam).

22. See Harvey, 2 1 F.3d at 1 1 5.

23. See id.

24. For the sake of reading ease and simplicity, the Seventh, Eighth, Tenth, and Eleventh

Circuits' position will be referred to as the "Exception position" for the duration ofthe Note. The

Second, Fifth, Sixth, and Ninth Circuits' position will be labeled the "Example position."



1090 INDIANA LAW REVIEW [Vol. 35:1085

II. ?ost-Heck Analysis and Rulings in the Federal Courts

As the foregoing suggests, the federal circuit courts disagree as to the proper
application oftheHeckholding to § 1 983 claims for illegal searches and seizures.
Although most of the federal circuit courts have used language indicative of a
tendency to vacillate between the two poles of § 1983 jurisprudence, two
different points ofview have emerged among the circuit courts, which are labeled
herein the Exception and Example positions respectively.

25 The respective
positions of the individual circuit courts within the Exception and Example
positions will now be outlined in detail.26

A. Exception Position Held by the Seventh, Eighth, Tenth,
and Eleventh Circuits

The Seventh Circuit, through extensive analysis ofHeck's impact on § 1983
illegal search claims, has championed the Exception position more vigorously
than any ofthe other circuit courts. The leading Seventh Circuit case of Copus
v. City ofEdgerton

27
is indicative ofthe circuit's beliefthat footnote seven ofthe

Heck opinion created a blanket exception for § 1983 illegal search and seizure
claims from the favorable termination requirement.

28
In Copus, the plaintiffhad

been convicted ofpossession ofvarious illegal weapons after the police searched
his home without a warrant in response to a domestic dispute.29 While serving
time for his weapons offenses and without reversal of his criminal conviction,

Copus filed a § 1983 claim for damages arising from the alleged illegal search

25. The federal D.C., First, Third, and Fourth Circuits' positions are absent from the

following discussion because these circuits have not extensively discussed the applicability ofHeck

v. Humphrey to § 1983 illegal search claims. However, both the First and Fourth Circuits, while

primarily deciding § 1983 litigation for claims other than for an illegal search, have intimated that

they lean toward the Example position held by the Second, Fifth, Sixth, and Ninth Circuits. See

Scott v. Wellesley Police Dep't, No. 98-1280, 1998 WL 1085778, at * 1 (1st Cir. Sept. 24, 1998)
(per curiam) (stating, with respect to several § 1983 illegal search claims, that "to the extent they

are not barred under Heck v. Humphrey, plaintiffs claims each fail on the merits") (citation

omitted); Brooks v. City of Winston-Salem, No. 95-6546, 1996 WL 531299, at *2 (4th Cir. Aug.
1 5, 1 996) (per curiam) (recognizing, without expressly including illegal search claims, that § 1 983

claims under Heck generally require a favorable termination of the criminal conviction before

proceeding); Wright v. Oliver, 85 F.3d 1 78, 1 82-83 (4th Cir. 1 996) (holding that the § 1 983 claim

for an alleged warrantless arrest could have proceeded immediately without affecting the validity

ofthe conviction); Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir. 1995) (holding that

the plaintiffs § 1983 claims did not accrue until the criminal trial ended in acquittal); Snyder v.

City ofAlexandria, 870 F. Supp. 672, 685-88 (E.D. Va. 1994) (discussing Heck and applying the

Example position by analyzing each of plaintiffs § 1983 claims and determining which, if any, of

the claims necessarily implied the invalidity of the plaintiffs conviction).

26. Because of the substantial quantity of § 1983 claims brought in the federal courts, the

following cases are intended to be illustrative of each circuit's position rather than exhaustive.

27. 151 F.3d 646 (7th Cir. 1 998).

28. See id at 648-49.

29. Id. at 647.



2002] HECK v. HUMPHREY 1 09

1

of his home and subsequent seizure of his weapons.
30

Following the dismissal

by the district court of Copus's claim under Heck, the Seventh Circuit agreed to

hear Copus's appeal and decide "whether the district court correctly concluded

that ajudgment in favor ofCopus in his civil suit alleging an unlawful search and
seizure under the Fourth Amendment necessarily would imply the invalidity of
his confinement."

31 The Seventh Circuit reversed the district court by concluding
that "Heck does not bar a claim such as Copus" because "Fourth Amendment
claims for unlawful searches or arrests do not necessarily imply a conviction is

invalid, so in all cases these claims can go forward."
32

The Seventh Circuit's rationale for the Copus holding was simply that "a
search can be unlawful but the conviction entirely proper, or the reverse," and

thus that a search, even if it produces admissible evidence used to convict, is not

necessarily legal.
33 Because it was possible that Copus's conviction could be

valid while the search that produced the damning evidence was conducted
illegally, Heck did not mandate the dismissal of Copus's claim because success
on his Section 1983 claim did not "necessarily . . . impugn the validity of his
conviction."

34

Other Seventh Circuit decisions have consistently held that a § 1983 claim

for an alleged illegal search is not barred by Heck's favorable termination

requirement. In Perez v. Sifel?
5
the plaintiff was incarcerated at a correctional

facility when he filed a § 1983 claim against several police officers alleging,
among several civil rights violations, that an illegal search was conducted.36 The
court held that "[t]he claims relating to an illegal search and an improper arrest

may not be barred [by Heck], as neither claim would necessarily undermine the
validity ofthe conviction."

37
Similarly, in the 1 995 case Simpson v. Rowan™ the

30. Id

31. Id at 647-48.

32. Id. (emphasis added).

33. Id at 649 (quoting Gonzalez v. Entress, 133 F.3d 551, 554 (7th Cir. 1998)).

34. Id.

35. 57 F.3d 503 (7th Cir. 1 995) (per curiam).

36. Mat 504-05.
37. Id. at 505. Despite this holding, however, the Seventh Circuit remanded the case to the

trial court to determine if the illegal search claim would in fact impugn the validity of the

conviction. Id. This minor aberration from the Exception position, which the Seventh Circuit has

generally championed, was irrefutably corrected by the Copus holding that "in all cases these [§

1983 claims for an illegal search] can go forward." 151 F.3d at 648; see also McClain v. U.S.

Dep't of Justice, 17 Fed. Appx. 471, 473-74 (7th Cir. 2001) (noting "it is well-settled that Fourth

Amendment claims ofwrongful search . . . may succeed without undermining a conviction and thus

are not implicated by Heck); Blanck v. Hobson, No. 98-2993, 2000 WL 637544, at *3 (7th Cir.
May 1 6, 2000) (stating that "a damages action for an illegal search would not necessarily imply the
invalidity of a conviction"); Apampa v. Layng, 157F.3d 1 103, 1105 (7th Cir. 1998) ("The fact that

some evidence used in a trial is tainted by illegality does not necessarily undermine the conviction

. . . .").

38. 73F.3dl34(7thCir. 1995).



1092 INDIANA LAW REVIEW [Vol. 35:1085

plaintiff, who was convicted for felony murder and sentenced to death, brought
a § 1983 claim for damages alleging an illegal search and arrest.

39
In response to

the district court's dismissal of the case, the Seventh Circuit reiterated that
"Simpson's claims relating to an illegal search ... are not barred by Heel?
because "a conviction generally need not be set aside in order for a plaintiff to

pursue a § 1983 claim under the Fourth Amendment."
40

Like the Seventh Circuit, the Eighth Circuit has construed Heck's footnote

seven as providing a general exception for § 1983 illegal search and seizure

claims. In Simmons v. O yBrien 4X a plaintiffbrought a § 1 983 claim following his
state conviction for second-degree murder and first-degree burglary.

42
The §

1983 claim asserted an alleged coerced confession rather than an illegal search.
43

Nevertheless, the court found the Fifth Amendment claim tantamount to the
illegal search exception established in Heck and thus the claim could be brought
prior to the reversal of the plaintiffs conviction.

44

The Eighth Circuit again indicated its affiliation with the Exception position
in Moore v. Sims.45 The plaintiff in Moore had been convicted of possession of
a controlled substance when he sought relief pursuant to § 1983 for an alleged
illegal seizure.

46
Immediately after quoting footnote seven from the Heck

opinion, the court found that Moore's claim could proceed without violating

Heck: "If Moore successfully demonstrates that his initial seizure and detention
by officers was without probable cause, such a result does not necessarily imply
the invalidity of his drug-possession conviction. We therefore reverse the
dismissal ofthis claim."

47
Although both Simmons and Moore involved § 1983

claims for alleged constitutional violations other than an illegal search, both cases

expressly used Heck's reference to illegal search claims as a springboard for their

rationale that the § 1983 claims before the court were not barred by Heck.
49

Consequently, it is a safe assumption that the Eighth Circuit has adopted the

Exception position for § 1 983 illegal search claims and will expressly do so when
given the opportunity.

49

39. A/ at 135.

40. Mat 136.
41. 77 F.3d 1093 (8th Cir. 1996).

42. Id. at 1094.

43. Id

44. See id. at 1 095 (stating that "in terms ofeffect on trial, there was no qualitative distinction

between the admission at trial of illegally seized evidence and the admission of involuntary

confessions*').

45. 200 F.3d 1 1 70 (8th Cir. 2000) (per curiam).

46. A/, at 1170-71.

47. Id. at 1171-72.

48. See id; Simmons, 77 F.3d at 1095.

49. See Whitmore v. Harrington, 204 F.3d 784, 784-85 (8th Cir. 2000) (per curiam) (holding,

in a Bivens action brought against federal agents for an alleged unlawful stop that, "[i]f Whitmore

were to succeed on this claim, it would not necessarily imply the invalidity of his later drug

convictions."); Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000) (stating that the Eighth



2002] HECK v. HUMPHREY 1093

Like the Seventh Circuit, the Tenth Circuit has clearly embraced the

Exception position by holding that § 1983 claims for an illegal search can

proceed absent a favorable termination of the prior conviction. In Beck v. City

ofMuskogee Police Dep't,
50

an incarcerated plaintiff brought several § 1983

claims against the Muskogee Police Department, including a claim for an
unreasonable search.

51 The court held that while many ofthe § 1 983 claims were
premature because Heck's favorable termination requirement had not been met,

the claim for an illegal search was different because "Heck applies only to those

claims that would necessarily imply the invalidity of any conviction."
52

Likewise, in Cotner v. Fugate* the court ruled that the plaintiffs § 1 983 claims
for illegal search and seizures could be brought notwithstanding the fact that

Cotner's conviction had not been reversed: "[W]e agree with Cotner that his

claims, if proved, would not necessarily demonstrate the invalidity of his
convictions and sentence

"54

The Eleventh Circuit was the final circuit to adopt the Exception position.
In Datz v. Kilgore,

55
a plaintiff, Datz, was convicted for possessing a firearm as

a felon after the police conducted a search of Datz' car and found a rifle.
56

In

response to Datz
9

§ 1983 claim for damages stemming from the alleged illegal

search, the court stated, "Heck v. Humphrey is no bar to Datz' civil action
because, even if the pertinent search did violate the Federal Constitution, Datz

9

conviction might still be valid
"5?

The Eleventh Circuit in Datz, like the Seventh, Eighth, and Tenth Circuits,
appears to hold that because a § 1983 claim for an illegal search will not

Circuit, among others, has "held that footnote seven creates a general exception to Heck for § 1 983

Fourth Amendment unreasonable search and seizure claims"). But see Rice v. Barnes, 966 F. Supp.

890, 897 (W.D. Mo. 1997) (holding a § 1983 suit alleging the invalidity of a search warrant must

be dismissed because it constituted an "impermissible collateral attack on Plaintiffs conviction").

50. 195 F.3d 553 (10th Cir. 1999).

51. Id at 555-58.

52. Id. at 557-58. The court ultimately held the illegal search claim was barred by the

applicable statute of limitations. Id. at 558.

53. No. 95-5256, 1996 WL 422046 (10th Cir. July 29, 1996).
54. Id at * 1 . But see Bonner v. Flowers, No. 95-6 1 96, 1 996 WL 1 820, at 1 -2 ( 1 0th Cir. Jan.

3, 1996) (holding that a search and seizure of property that occurred after an investigative stop of

the plaintiffs vehicle could not proceed prior to the favorable termination of the plaintiffs

conviction because if the stop of the vehicle was found unlawful and damages were awarded, the

conviction would have been undermined).

55. 51 F.3d 252 (1 1th Cir. 1995) (per curiam).

56. Mat 253.
57. Id. at 253 n.l (citation omitted). Despite the courts statement that the illegal search

claim by Datz could proceed, the court found that Datz' claim attacking events preceding his state

conviction was barred by the Rooker-Feldman doctrine. Id. at 253-54. The Rooker-Feldman

doctrine holds that federal courts "may not decide federal issues that are raised in state proceedings

and 'inextricably intertwined' with the state court judgment." Id. at 253 (quoting Staley v.

Ledbetter, 837 F.2d 1016, 1018 (1 1th Cir. 1988)).



1094 INDIANA LAW REVIEW [Vol. 35:1085

invariably and consistently undermine the previous criminal conviction, the claim

can go forward. These circuits interpret literally the phrase "necessarily imply

the invalidity of [a] conviction" contained in Heck. Thus, § 1983 illegal search

claims can proceed absent a favorable termination because it is possible that the

conviction would have occurred without the search and seizure or that the
evidence seized could have been legally obtained at a later date as footnote seven

ofHeck suggests.
58

B. Example Position Held by the Second, Fifth, Sixth, and Ninth Circuits

As stated previously, the Second, Fifth, Sixth, and Ninth Circuits interpret
Heck's footnote seven as an example of a § 1983 claim that may or may not
undermine a previous conviction and thus must be determined on a case-by-case

basis.
59

Consequently, a § 1983 claim for an illegal search is subject to the

equivalent scrutiny that other § 1983 causes ofaction receive, namely, a plaintiff

must demonstrate that success on the illegal search claim will not "imply the
invalidity" of the previous conviction.

60
These circuits insist that the Supreme

Court intended footnote seven to be illustrative, not dispositive. Thus, § 1983

claims based on an illegal search may proceed prior to the favorable termination
of a conviction only if the plaintiff can show that the civil suit will not serve as
a collateral attack on the previous conviction.

61

The Second Circuit, although lacking a comprehensive or extended
discussion, did have occasion to discuss when it was appropriate to bring a §
1983 illegal search claim in the 1995 case, Woods v. Candela.

62 The plaintiff in
Woods alleged in a § 1983 action that a police officer violated his Fourth
Amendment rights when the officer detained the plaintiff and searched his
vehicle without reasonable suspicion.

63
Because over three years had expired

between the initial arrest of the plaintiff and the filing of the § 1983 action, the

State ofNewYork claimed that the applicable statute oflimitations had expired.64

The court disagreed, however, and stated that the § 1983 illegal search claim

58. See Heck v. Humphrey, 512 U.S. 477, 487 n.7 (1994).

59. See Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000); Schilling v. White, 58 F.3d

1081 (6th Cir. 1995); Mackey v. Dickson, 47 F.3d 744 (5th Cir. 1995) (per curiam); Woods v.

Candela, 47 F.3d 545 (2d Cir. 1995) (per curiam).

60. Heck, 5\2 U.S. at 487.

61

.

It is important to note that the Exception and Example positions will sometimes yield the

same result despite their different approaches to a § 1983 claim for an alleged illegal search. For

example, if a court following the Example position holds that a particular § 1983 illegal search

claim will not imply the invalidity of the previous conviction, the plaintiff will be allowed to

proceedjust as ifthe plaintiffhad brought the case in a court that adheres to the Exception position.

See, e.g.. Perry v. Wellington, No. 98-4215, 1999 WL 1045170, at *1 (6th Cir. Nov. 9, 1999);
Braxton v. Scott, 905 F. Supp. 455, 458 (N.D. Ohio 1995).

62. 47F.3d545.

63. 7<sUt546.

64. See id.



2002] HECK v. HUMPHREY 1095

"could not have been raised prior to the Appellate Division's reversal of his

conviction" because the claim would "necessarily imply that his conviction was
unlawful."

65 The Woods holding indicates that the Second Circuit adheres to the
Example position because § 1983 claims for an illegal search are subject to

Heck's favorable termination requirement.
66

Like the Second Circuit, the Fifth Circuit has had few opportunities to

discuss extensively the appropriateness of filing a § 1983 illegal search claim

prior to the favorable termination of the plaintiffs conviction. However, the

Fifth Circuit in Mackey v. Dickson
61
did clearly articulate that the Fifth Circuit

adheres to the Example position.
68

In Mackey, a plaintiffbrought a § 1 983 claim

for an alleged illegal search and seizure while his criminal case for delivery of

cocaine was still pending.
69

After the court admitted that "[t]he record does not

clearly reflect that a successful attack on Mackey's arrests will implicate the

validity of his confinement," it concluded: "[t]he court may—indeed
should—stay proceedings in the section 1 983 case until the pending criminal case
has run its course, as until that time it may be difficult to determine the relation,
if any, between the two."

70 The Mackey case demonstrated that the Fifth Circuit
read Heck to require a determination of whether the § 1983 illegal search claim
would undermine the validity of the previous conviction.

71
Absent a favorable

termination, the ability of a plaintiff to pursue damages in a § 1983 suit is

contingent on this question. Unlike the Exception position, the Fifth Circuit does

not read footnote seven ofHeck to provide a blanket exception for illegal search
claims brought under § 1983.

72

Without question, the Sixth Circuit is the strongest advocate ofthe Example

position among the Second, Fifth, and Ninth Circuit adherents. Just a few months
after the Heck decision was rendered, the Sixth Circuit established its affiliation

65. Id.

66. See id; see also Bourdon v. Vacco, No. 99-0261, 2000 WL 637081, at * 1 (2d Cir. May
17, 2000) (recognizing that a § 1983 illegal search claim might not impugn the validity of a

conviction, but that a determination "is inherently a factual one" (quoting Covington v. City ofNew

York, 171 F.3d 117, 122 (2d Cir. 1999))); Covington, 171 F.3d at 122 (construing Woods as

representing the Second Circuit's contention that whether a § 1983 claim can be brought must be

decided on a case-by-case basis contingent on the particular facts before the court).

67. 47 F.3d 744 (5th Cir. 1995) (per curiam).

68. See id. at 746.

69. Id at 745-46.

70. A* at 746.

71. See id.

72. See id. ; see also Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1 996) (applying the now-

familiar test that, absent a favorable termination ofthe previous conviction, "Hudson's section 1983

action may be entertained . . . only if the court determines that holding in Hudson's favor will not

necessarily call into question the validity ofhis convictions"); Salts v. Moore, 1 07 F. Supp. 2d 732,

737-38 (N.D. Miss. 2000) (dismissing plaintiffs § 1983 illegal search claim because the plaintiff

failed to demonstrate that his conviction had been invalidated), appeal dismissed by 250 F.3d 741

(5th Cir. 2001).



1 096 INDIANA LAW REVIEW [Vol. 35: 1 085

with the Example position in Schilling v. White.
73

The plaintiff in Schilling
brought a § 1983 claim alleging that an illegal search occurred when two police
officers searched his vehicle following a car accident.

74
The Sixth Circuit

expressly rejected the Seventh Circuit stance (Exception position) that a claim of
an illegal search is exempt from the Heck rule that the previous conviction must
have been reversed before a § 1983 claim can proceed. The court stated:

[T]he Seventh Circuit continues to allow a Fourth Amendment exception
to this [favorable termination] rule. . . . The Seventh Circuit misreads
Heck. The fact that a Fourth Amendment violation may not necessarily
cause an illegal conviction does not lessen the requirement that a

plaintiff show that a conviction was invalid as an element of
constitutional injury.

75

Thus, the Sixth Circuit would require a judicial determination in each § 1983
illegal search case regarding whether the asserted claim, if not previously

reversed, would serve as a collateral attack on the criminal conviction by
undermining its validity.

76

In Shamaeizadeh v. Cunigan
77

the Sixth Circuit again addressed the

polarization in the federal circuit courts regarding § 1983 illegal search claims.

The plaintiff in Shamaeizadeh was arrested for violations of federal drug laws
when a warrantless search ofhis home revealed marijuana plants and equipment
used to make marijuana cigarettes.78 After the district court ruled that the search
of Shamaeizadeh's home was unconstitutional, Shamaeizadeh brought a § 1983
illegal search claim against the police officers who conducted the search, but he
did so over one year after the initial search was conducted.

79
The court held that

the one-year statute of limitations did not bar Shamaeizadeh's suit because "his

cause of action under § 1983 did not accrue until the charges against him were
dismissed."

80

73. 58 F.3d 1081 (6th Cir. 1995).

74. Mat 1082-83.
75. Id. at 1086.

76. See e.g., Perry v. Wellington, No. 98-4215, 1999 WL 1045170, at *1 (6th Cir. Nov. 9,
1999) (allowing a § 1983 illegal search claim to proceed prior to a favorable termination of

plaintiffs conviction because the claim was based on the manner in which the search was

conducted and thus "would not imply the invalidity ofhis conviction"); Brindley v. Best, 192 F.3d

525, 530-31 (6th Cir. 1999) (holding that a § 1983 illegal search claim could proceed prior to

reversal ofthe plaintiffs conviction without implicating its validity because the evidence obtained

during the search was not used to convict the plaintiff); Walker v. Minton, No. 98-6627, 1999 WL
503476, at *2 (6th Cir. July 7, 1999) (holding that "to the extent that Walker sought economic

damages for the alleged unlawful . . . search and ultimate convictions, the district court properly

dismissed his § 1983 action because he did not show that his convictions had been set aside").

77. 182 F.3d 391 (6th Cir. 1999).

78. Id. at 393.

79. Id. at 393-94.

80. Id. at 397.



2002] HECK v. HUMPHREY 1 097

More important than the ultimate holding, however, was the Sixth Circuit's
recognition that the federal circuit courts had adopted two divergent schools of
thought on § 1983 illegal search claims: "Certain courts read this language to

create a general exception to the doctrine of Heck for Fourth Amendment
unreasonable-search claims brought against state officials under § 1983."

81 The
court then took issue with the Exception position and concluded, "This court read

the footnote in Heck as clearly rejecting the conclusion that a general exception
to the requirement that a conviction be set aside exists for Fourth Amendment
claims under § 1983."

82
Thus, the Sixth Circuit unequivocally holds that § 1983

illegal search claims are held to the same favorable termination standard
articulated in Heck as other § 1983 claims.

83

Ofthe circuits adopting the Example position, the Ninth Circuit was the last
to do so. It was not until the 2000 case Harvey v. Waldron

u
that the court

expressly embraced the Example position.
85

In Harvey, the plaintiff brought a §
1983 action against numerous police officers, prosecutors, and Montana
Department ofRevenue employees, alleging that the defendants had violated his

civil rights by conducting illegal searches leading to the subsequent illegal

seizure of his property.
86 The charges against the plaintiff had been dismissed

two and one-half years prior to the filing of the § 1983 claim, but the alleged
illegal search took place nine years prior to the filing of the claim.

87
The Ninth

Circuit held that the claim was filed within the three year statute of limitations
because "a § 1983 action alleging [an] illegal search and seizure ofevidence upon

which criminal charges are based does not accrue until the criminalcharges have

81. A* at 395.

82. Id. at 396 (emphasis added); see also Bell v. Raby, No. 99-72917, 2000 WL 356354, at
*6 (E.D. Mich. Feb. 28, 2000) ("the Sixth Circuit ... has emphatically rejected" that Heck creates

a general exception to the favorable termination requirement for § 1983 illegal search claims).

83. See Braxton v. Scott, 905 F. Supp. 455, 458 (N.D. Ohio 1995) (stating that Schilling and

Heck both stand for the proposition "that fourth amendment claims are to be treated no differently

than any other § 1 983 claims which are related to convictions" (emphasis added)).

84. 210 F.3d 1008 (9th Cir. 2000).

85. See Schwartz v. City of Phoenix, 83 F. Supp. 2d 1 102, 1 104 n.2 (Ariz. 2000). Although

the Ninth Circuit did not expressly adopt the Example position until the 2000 Harvey decision, the

court did discuss § 1983 illegal search claims in light ofHeck on several occasions before Harvey.

See Housley v. United States, No. 97-15831, 1998 WL 476473 at *1 (9th Cir. July 28, 1998)
(dismissing plaintiffs § 1983 claims, including an illegal search claim, because the injuries alleged

related to the conviction and thus could not lie until a favorable termination had occurred); Pierce

v. Mallon, No. 99-55454, 1996 WL 28571 1, at *1 (9th Cir. May 29, 1996) (dismissing § 1983
illegal search claim under Heck because evidence obtained during the search led to the defendant's

conviction); Trimble v. City of Santa Rosa, 49 F.3d 583, 585-86 (9th Cir. 1995) (per curiam)

(dismissing § 1983 illegal search claim for failure to file the claim within the one-year statute of

limitations).

86. Harvey, 210 F.3d at 1010-1 1&n.3.

87. See id at 1010-11.



1098 INDIANA LAW REVIEW [Vol. 35:1085

been dismissed or the conviction has been overturned."** Stated another way, a

§ 1983 illegal search claim does not enjoy a blanket exception under Heck to the
favorable termination requirement.

89
If the Heck rule did not apply, the illegal

search claim would have been barred by the applicable three-year statute of
limitations because the claim could have been brought immediately after the

search occurred.
90

In sum, the Second, Fifth, Sixth, and Ninth Circuits subscribe to the Example
position and therefore treat § 1 983 illegal search claims no differently than other

§ 1983 claims. A district court must determine if success on the illegal search
claim undermines the validity of the previous criminal conviction. If not, the

claim can proceed. If so, the claim is barred unless and until the plaintiffproves
he has procured a favorable termination of the previous conviction.

91

C. The § 1983 Plaintiffat the Mercy ofGeography

Having presented the individual positions ofthe respective circuit courts, it
is necessary to understand when the Exception and Example positions will yield
decisively different results for plaintiffs claiming that searches violated their

Fourth Amendment rights. With the current disparate treatment of § 1 983 illegal
search claims among the circuit courts, a plaintiffdomiciled in Indiana (Seventh
Circuit) may be allowed to bring a claim immediately while a plaintiff residing
a mile away in Ohio (Sixth Circuit) would be prohibited despite identical fact
patterns. If a convicted criminal seeks to assert a § 1983 illegal search claim

prior to the favorable termination ofthe criminal conviction, the criminal's ability

to proceed will depend on his location. Circuits that adhere to the Exception

position will allow the claim to proceed irrespective of the status of the

conviction.
92
Meanwhile, circuit courts following the Example position will only

allow the claim to proceed prior to a favorable termination if the district court

determines that the illegal search claim will not undermine the validity of the

conviction.
93

A second and less obvious situation where the outcome of a § 1983 illegal

88. Id. at 1015 (emphasis added).

89. See Harned v. Landahl, 88 F. Supp. 2d 1118, 1121 n.2 (E.D. Cal. 2000) ("[U]nder Heck,

in order to recover damages under § 1983 for an alleged unconstitutional search the unlawfulness

of which would render a conviction invalid, a plaintiff must prove that the conviction has been

invalidated, either at the trial or appellate level.").

90. See Harvey, 210 F.3d at 1012-13; see also Guerrero v. Gates, 1 10 F. Supp. 2d 1287,

1290-91 (CD. Cal. 2000) (holding the statute of limitations for plaintiffs § 1983 illegal search

claim began to run when the plaintiff was no longer in custody, because while in custody, a

favorable judgment would have implied that the plaintiffs conviction was invalid).

91

.

See Harvey, 210 F.3d at 101 5; Shamaeizadeh v. Cunigan, 182 F.3d 391, 394-95 (6th Cir.

1999); Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995); Mackey v. Dickson, 47 F.3d 744,

746 (5th Cir. 1995) (per curiam); Woods v. Candela, 47 F.3d 545, 546 (2d Cir. 1995) (per curiam).

92. See, e.g., Copus v. City of Edgerton, 151 F.3d 646, 647-48 (7th Cir. 1998).

93. See, e.g., Schilling, 58 F.3d at 1086.



2002] HECK v. HUMPHREY 1 099

search claim is contingent on the philosophy adopted by the circuit court is where

the statute of limitations is an issue. The circuits that have construed Heck's
footnote seven to provide an exception to the favorable termination requirement

for § 1983 illegal search claims start the statute of limitations "clock" on the date

the alleged illegal search occurred.
94

Such a statute oflimitations stance logically

follows from the Exception position that holds "in all cases these [§ 1 983 illegal

search] claims can go forward."
95

Consequently, because an illegal search claim

can be advanced immediately irrespective ofthe status ofthe criminal conviction,

a plaintiff must be mindful ofthe statute of limitations for § 1983 actions within

the particular state in which the alleged violation occurred.
96

In stark contrast to the Exception position, Example position courts posit that
the statute of limitations does not begin until the conviction has been reversed or

invalidated in some way.
97

Because the Second, Fifth, Sixth, and Ninth Circuits

have construed Heck to require a favorable termination before a § 1983 illegal
search claim can be asserted (unless the claim will not imply the invalidity ofthe

conviction), these circuits necessarily hold that the statute of limitations "clock"

does not begin to run until a plaintiff is eligible to bring the claim.

The inconsistency between the Exception and Example positions on the
statute oflimitations issue leads to an unfortunate disparity in treatment between

similarly situated plaintiffs. Justiciability of a § 1983 claim is contingent on the

plaintiffs zip code rather than the magnitude of the constitutional injury.

III. Exception and Example Positions Analyzed

A. Advantages ofthe Exception Position Over the Example Position

The Exception position, despite being sharply criticized by proponents ofthe
Example position, has several compelling strengths that in some cases might
make the Exception position preferable. First, the Exception position as
articulated by the Seventh Circuit is consistent and simple to apply because "in
all cases these claims [§ 1 983 claims for an illegal search] can go forward."

98 As

94. See, e.g., Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 558 (10th Cir. 1999);

Gonzalez v. Entress, 133 F.3d 551, 554 (7th Cir. 1998); Woodward v. Paige, No. 96-3202, 1997

WL 31548, at *3 (10th Cir. Jan. 27, 1997); Perez v. Sifel, 57 F.3d 503, 505 (7th Cir. 1995) (per
curiam).

95. Copus, 151 F.3dat648.

96. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam) ("The

statute of limitations for section 1983 actions is determined by state law.").

97. See, e.g., Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000); Shamaeizadeh v.

Cunigan, 182 F.3d 391, 396 (6th Cir. 1999); Covington v. City ofNew York, 171 F.3d 117, 123
(2d Cir. 1999); Schilling, 58 F.3d at 1087 n.5; Woods v. Candela, 47 F.3d 545, 546 (2d Cir. 1995)

(per curiam). #«*.«»<? Triestman v. Probst, 897 F. Supp. 48, 50 (N.D.N.Y. 1995) (holding, without

reference to Heck v. Humphrey, that the statute of limitations for a plaintiffs § 1983 illegal search

claim began to run on the date the illegal search occurred).

98. Copus, 151F.3dat648.



1100 INDIANA LAW REVIEW [Vol. 35:1085

a result of this clear mandate, judicial resources may be preserved. Courts that
adhere to the Exception position do not need to ascertain on a case-by-case basis
whether a § 1983 unreasonable search claim can go forward, as required by the
Example position." The Exception position avoids involved legal arguments that
consume valuable judicial time by simply stating that irrespective of the
particular circumstances of the case, a § 1983 illegal search claim can proceed

prior to the favorable termination of the previous conviction.
100

A sampling of statistical data helps illustrate the point thatjudicial economy
is a necessary concern for federal courts. Federal district courts have been faced

with managing judicial dockets that saw 251,511 new civil cases filed in the
twelve months preceding June 30, 1999, and 263,049 new civil cases filed in the
twelve months preceding June 30, 2000.

101
For the same twelve-month time

period, the Circuit Courts of Appeals endured the filing of 54,816 new criminal
and civil appeals in 1998-99 and 54,642 new criminal and civil appeals in 1999-
2000.

,02
The burgeoning case loads in federal district courts has led to a backlog

of litigation. In the twelve months preceding June 30, 2000, for example, ajury
trial in federal district court took a median of20.4 months from the date of filing

to resolution, with the Second Circuit requiring a median time of nearly twenty-

seven months.
103

In light ofthe fact that a plaintiff seeking ajury trial in federal

district court must wait over a year and one-half on average for resolution, it is

self-evident that the Exception position's streamlined approach is a compelling

argument on its behalf. While the Exception position decisively allows all § 1 983

illegal search claims to proceed prior to a favorable termination, the Example
position inundates an already overburdened federal judiciary with additional

hearings to determine if a claim may be brought. 104

A second argument in favor of the Exception position focuses not on the
simplicity of the Exception position, but rather on its recognition of the

complexities that surround the admissibility ofevidence in criminal proceedings.

Exception position adherents correctly recognize that the admissibility of

evidence in a criminal case is fundamentally different from holding that the

99. See Pierce v. Mallon, No. 99-55454, 1996 WL 28571 1, at * 1 (9th Cir. May 29, 1996).
100. SeeCopus, 151 F.3d at 648-49.

101. Admin. Office of the U.S. Courts, Statistical Tables for the Federal Judiciary: June

30, 2000, at 22 tbl.C (2000).

102. /4at7tbl.B.

103. /</. at40tbl.C5.

1 04. It is certainly true that, at first blush, the Exception position is more efficient than the

Example position. However, it is important to note that the Exception position always allows the

§ 1983 illegal search claim to proceed while the extra hearing in the Example position courts may

prohibit many § 1983 claims from proceeding on the merits. Thus, the additional time spent by

Example position courts to determine ifthe § 1 983 illegal search claim impugns the validity ofthe

criminal conviction, rather than exacerbating the problem of an overwhelmed judiciary, could

potentially be less of a burden on the federal judiciary than always allowing the claim to proceed.

See infra Part IV.A.



2002] HECK v. HUMPHREY 1101

evidence was obtained legally.
105

Stated another way, police occasionally obtain

evidence that can survive a motion to suppress and is therefore admissible, but

nevertheless violate the criminal defendant's civil rights. For example, police

could search a home pursuant to a validly executed search warrant and find
narcotics, but in the process ransack the home by intentionally breaking
expensive antique china dishes belonging to the homeowner to "teach the
homeowner a lesson." If the narcotics were submitted as evidence and used to
convict the homeowner of drug possession, the Example position would likely
prohibit the homeowner from seeking damages via a § 1983 illegal search claim
unless and until the criminal conviction was favorably terminated.

106
Although

common sense dictates that the narcotics should be admissible in the subsequent
criminal proceeding against the homeowner, it is equally obvious that the

criminal defendant should be entitled to seek damages for what was essentially

a legal search that was conducted illegally. The Exception position would allow
the homeowner who was convicted of narcotics possession to seek damages
nevertheless under a § 1983 illegal search cause of action for pecuniary losses

associated with the irresponsible destruction of his antique china.
107

Heck v. Humphrey109 itself in footnote seven provides further situations
where evidence may be illegally obtained and yet be admissible. 109 The Court
cites doctrines like "independent source,"

110
"inevitable discovery,"

111
and

"harmless error"
112

that all allow for illegally obtained evidence to be used to

105. Copus, 151 F.3d at 648 (noting that "tainted evidence , . . [could] have been admitted

anyway (e.g., under a theory of inevitable discovery)).

1 06. See Schilling v. White, 58 F.3d 1 08 1 , 1 086 (6th Cir. 1 995). The Sixth Circuit stated the

unyielding proposition that "[u]nless that conviction has been reversed, there has been no injury

of constitutional proportions, and thus no § 1983 suit may exist." Id. Thus, in the above

hypothetical, the homeowner would have no § 1983 remedy. However, other Example position

decisions from the Sixth Circuit appear to permit a case-by-case determination. See Brindley v.

Best, 192 F.3d 525, 530-31 (6th Cir. 1999).

107. See Copus, 151 F.3d at 649 ("The point is that it is possible for an individual to be

properly convicted though ... his home [is] unlawfully searched. The remedy ... is a civil action

under § 1983 ... .)

108. 512 U.S. 477 (1994).

109. See id. at 487 n.7.

1 1 0. Black 's Law Dictionary describes the doctrine of independent source as dictating that

"evidence obtained by illegal means may nonetheless be admissible ifthat evidence is also obtained

by legal means unrelated to the original illegal conduct." Black's Law Dictionary 774 (7th ed.
1999).

111. The doctrine of inevitable discovery holds that "evidence obtained by illegal means may

nonetheless be admissible ifthe prosecution can show that the evidence would eventually have been

legally obtained anyway." Id. at 780.

112. Harmless error is defined as "an error that does not affect a party's substantive rights or

the case's outcome." Id. at 563. For an example ofwhen harmless error is invoked in an Exception

jurisdiction to allow a plaintiffto proceed with a § 1983 claim prior to a favorable termination, see

Simmons v. O'Brien, 11 F.3d 1093, 1094-95 (8th Cir. 1996).



1 102 INDIANA LAW REVIEW [Vol. 35:1085

convict a criminal defendant.
113

It is very plausible that when one of the
foregoing doctrines is asserted by a prosecutor in an attempt to make illegally
obtained evidence admissible, an action for damages could be warranted for the
manner in which the evidence was obtained. The Example position offers no §
1983 remedy for the criminal defendant in such cases because the evidence was
used to convict the defendant and thus cannot be attacked collaterally through a

civil action prior to a favorable termination.
114 By contrast, the Exception

position is unconcerned with either the admissibility of the evidence in the
criminal case or the status of the conviction of the § 1983 plaintiff. Rather, the

Exception position focuses on the legality of the search and the existence of
legitimate compensable injuries as a result of the search.

115

B. Advantages ofthe Example Position Over the Exception Position

Several arguments exist in support of the proposition that the Example
position is preferable to the Exception position. First, and perhaps most
compelling, is that the Example position avoids the appearance of inconsistent
verdicts by refusing to award damages in a civil case for a search that yielded
admissible evidence in a criminal proceeding. Several courts adopting the

Example position have stated their concern that the Exception position creates an
image to the public of inconsistent verdicts between the civil and criminal court

systems.
116

The Exception position invites legal challenges that appear patently
inconsistent to the public because a convict is able to seek damages stemming
from a search that yielded evidence that led to the criminal's conviction.

Although legal scholars may understand the subtle but important differences
between admissible evidence and legally obtained evidence, the distinction may
be lost on the average citizen who may not understand how evidence declared by
a criminaljudge as admissible against a defendant can simultaneously provide the

criminal with a financial windfall in a civil court. Although the law need not be

constrained by those who fail to fully understand its complexities, thejudiciary 's
legitimacy is derived from the amount of respect and confidence it commands
from the general public. Consequently, the Example position's ability to
perpetuate the appearance of consistency between the civil and criminal courts

113. HecK5\2\).S. at487n.7.

1 14. See, e.g., Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 (6th Cir. 1999); Schilling v.

White, 58 F.3d 1081, 1086 (6th Cir. 1995).

115. Cf. Apampa v. Layng, 1 57 F.3d 11 03, 1 1 05 (7th Cir. 1 998) ("The fact that some evidence

used in a trial is tainted by illegality does not necessarily undermine the conviction . . . .").

1 1 6. See, e.g. , Harvey v. Waldron, 2 1 F.3d 1 008, 1015 (9th Cir. 2000) (stating that embracing

the Example position "will avoid the potential for inconsistent determinations on the legality of a

search and seizure in the civil and criminal cases and will therefore fulfill the Heck Court's

objectives ofpreserving consistency and finality"); Shamaeizadeh, 1 82 F.3d at 397-98 (stating that

if the Exception position were followed "there would be a potential for inconsistent determinations

in the civil and criminal cases and the criminal defendant would be able to collaterally attack the

prosecution in a civil suit").



2002] HECK v. HUMPHREY 1 1 03

is a key reason why four circuits have adopted it.
117

A second advantage the Example position holds over the Exception position
is that the Example position avoids the duplicative nature of the Exception

position with respect to litigating virtually the same issue twice. The Exception
position forces civil courts to adjudicate claims for damages after a criminal court

has already ruled on the legality and adm issibi I ity ofthe evidence obtained during
a search and seizure.

118
In cases where the subsequent civil claim is clearly

frivolous, the Example position offers courts an escape route to dispose ofa case
short of a procedural mechanism like summary judgment or a Rule 12(b)(6)
Motion to Dismiss.

119
In effect, the Example position, while acknowledging that

civil claims for damages are different from criminal admissibility ofthe evidence,

allows civil courts the option to respect the decision of the criminal court

regarding the legality of the search and seizure of property. In situations where

a criminal judge has determined that a search was conducted in congruence with
the mandates of the Fourth Amendment, the Example position affords a civil
judge the option of refusing to hear a claim that would collaterally attack the
previous determination.

120 By contrast, the Exception position guarantees that a
civil case can be brought to challenge the legality of a search even in the face of

a convincingly prudent and lopsided decision by a criminal judge that the search

was lawful. 121 In such cases, the Example position offers a means to avoid

1 17. See, e.g., Harvey, 210 F.3d at 1015; Shamaeizadeh, 182 F.3d at 397-98. In fairness to

the Exception position, however, "consistency" can also be compromised by the Example position.

As previously discussed under the advantages ofthe Exception position, the Example position may

leave some would-be § 1983 plaintiffs without a remedy for a constitutional violation suffered at

the hands of overzealous police merely because the evidence seized was used to produce a

conviction. A court's refusal to provide a remedy to a party whose constitutional rights have been
trampled does a disservice to the promotion of "consistency" and justice; perhaps as much of a

disservice as allowing collateral attacks in civil court on evidence used to obtain a criminal

conviction.

1 1 8. Some federal courts have even held that a plaintiffs attempt to obtain money damages

for an alleged illegal search, after a criminal court in a suppression hearing found that the evidence

was obtained legally, constituted relitigation of the same claim and therefore was barred by the

doctrine of collateral estoppel. See, e.g., Scott v. Sutker-Dermer, 6 F. App. 448, 449-50 (7th Cir.

2001); Cornett v. Longois, 871 F. Supp. 918, 923 (E.D. Tex. 1994).

1 1 9. Although courts adhering to the Exception position can dismiss frivolous claims prior to

a trial on the merits, significant legal expense will be incurred by a state before the claim can be

dismissed, even ifonly briefs for a motion to dismiss are necessary to defeat the claim. Conversely,

the Example position provides the state with a more expeditious way to dispose of § 1983 illegal

search claims before the claim is even acknowledged as justiciable.

120. See Bell v. Raby, No. 99-72917, 2000 WL 356354, at *6 (E.D. Mich. Feb. 28, 2000).
121. The thoughtful critic at this point would be correct to point out that § 1 983 illegal search

claims that offer little or no chance of recovery are generally unlikely to be pursued. Plaintiffs are

generally unwilling to waste money on litigation doomed to failure, and lawyers, for ethical reasons,

are generally hesitant to take cases that are patently frivolous. However, plaintiffs who are
incarcerated and proceed pro se have little to lose by filing a frivolous claim. In such cases the



1 104 INDIANA LAW REVIEW [Vol. 35:1085

duplicative litigation and respect the decision of criminal tribunals.

The third strength ofthe Example position is that it allows courts to be more
precise and fact-sensitive in their analysis of whether a § 1983 illegal search
claim can proceed. Whereas the Exception position provides a blanket rule that
allows all § 1983 illegal search claims to go forward in all cases,

122
circuits that

adhere to the Example position are able to evaluate claims on a case-by-case basis
and issue a ruling that is contingent on the particular facts and circumstances of
the case.

123 As a general proposition, a case-specific method will allow courts to
determine better which § 1983 illegal search claims are deserving of being
adjudicated on the merits than will a blanket rule that offers uniformity and
simplicity, but little precision. The Example position arguably will act as a
judicial filter to preclude collateral attacks that will "demonstrate the invalidity

of any outstanding criminal judgment" while maintaining the flexibility that is
necessary to allow meritorious § 1983 unlawful search claims to proceed.

124

IV. Championing the Example Position

A. The Example Position Arguments Are More Persuasive

The aforementioned arguments in favor of the Example position are more
compelling than those for the Exception position, and therefore the Example
position is the preferable means to adjudicate § 1983 illegal search claims.

Taken as a whole, the Example position promotes judicial economy and
efficiency to a greater extent than the Exception position. Although the Example
position forces courts to conduct a hearing regarding whether a § 1983 illegal

search claim will undermine the validity of the criminal conviction,
125

the

Exception position forces courts to try the whole case.
126

Obviously, a hearing

that disposes of a claim, by comparison to a trial, significantly reduces the

amount oftime andjudicial energy that must be devoted to a § 1 983 illegal search
claim. Moreover, the Exception position allows a plaintiffto relitigate virtually

the same legal issues that were decided in a previous criminal hearing, all at
taxpayers' expense. The Example position, however, will only allow a § 1983

Example position intrinsically offers what the Exception position intentionally refuses—

a

procedural means to uphold criminal court determinations regarding the legality of a search and

thereby disposing of frivolous cases from the outset.

122. See Copus v. City of Edgerton, 151 F.3d 646, 648-49 (7th Cir. 1998).

123. See. e.g., Brindley v. Best, 192 F.3d 525, 530-31 (6th Cir. 1999) (holding that Heck did

not bar a § 1983 unlawful search claim because in the instant case the evidence was not used in the

criminal proceeding against the defendant).

124. Heck v. Humphrey, 512 U.S. 477, 487 (1994).

125. See Shamaeizadeh v. Cunigan, 182 F.3d 391, 396 (6th Cir. 1999) ("[I]f a district court,

after an independent review, determined that a § 1 983 cause of action would not imply the

invalidity of an outstanding conviction, the § 1983 action could proceed.'' (emphasis added)).

1 26. See Copus, 1 5 1 F.3d at 648 (stating that "in all cases" a § 1 983 illegal search claim can

go forward).



2002] HECK v. HUMPHREY 1 1 05

illegal search claim to go forward if the district court determines it will not

collaterally attack the criminal conviction.
,2?

Consequently, the Example position

allows courts to dispose of illegal search claims after only a hearing rather than

a full-blown trial.

A second reason why the Example position is preferable to the Exception
position is that the Example position is more consistent and fair. The Example
position is more likely to prohibit a convict from seeking to benefit financially
from the same set of facts that resulted in his incarceration. Even ifthe plaintiff
is ultimately unsuccessful, it is unacceptable to allow a convicted criminal to seek

compensation for a search that was determined by a criminal court to be legal.
In rare situations where the evidence was deemed admissible despite it being
illegally obtained, the Example position permits a district court to determine that
the particular § 1983 illegal search claim at bar can proceed.

128
Moreover, the

Example position is more fair and precise than the Exception position because the
Example position requires a case-by-case analysis of whether the plaintiffs
situation warrants a deviation from the Heck rule. Thus, the Example position
allows courts to treat all § 1983 illegal search claimants fairly and consistently.

A plaintiffs § 1983 claim is justiciable only where a plaintiff can demonstrate
either that his civil suit will not be a collateral attack on his previous conviction

or that the previous criminal proceeding has been favorably determined.
129

The most compelling argument in favor of the Exception position is that
evidence can be admissible in a criminal case because the search was warranted
and yet the search itselfwas conducted in a manner that violated the defendant's
Fourth Amendment rights. The hypothetical posed in Part IH.A in which police
intentionally destroyed the defendant's antique china illustrates an example of a

claim that should be allowed to proceed despite the fact that the plaintiffhad not

received a favorable termination of his criminal conviction. However, the

Example position, while not automatically permitting the § 1983 illegal search
claim to proceed as the Exception position does, would nonetheless also allow

this claim to be litigated. The Example position requires a district court to
determine that the § 1983 illegal search claim will not undermine the validity of
the criminal conviction.

130
In the previous hypothetical, the § 1983 claim

challenges how the narcotics were obtained, not whether the criminal conviction
or the search itself was valid. A district court adhering to the Example position
would have little difficultly holding that the plaintiffs claim could go forward
because it is not a collateral attack on the criminal conviction, but rather on the

manner in which the search was conducted.

1 27. See Shamaeizadeh, 1 82 F.3d at 396.

128. See id. A § 1983 illegal search claim would actually be consistent with the criminal
conviction because thejudge at the suppression hearing determined that the evidence was illegally

obtained, but that an exception to the suppression ofevidence doctrine allowed the evidence to be

admitted.

129. See id; Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995).

130. See, e.g., Shamaeizadeh, 182 F.3d at 396; Schilling, 58 F.3d at 1086.



1 106 INDIANA LAW REVIEW [Vol. 35:1085

B. The Example Position More Accurately Applies Heck v. Humphrey

Justice Robert Jackson once admitted in a 1953 Supreme Court case, "We
[the Supreme Court] are not final because we are infallible, but we are infallible
only because we are final." 131 In light of Justice Jackson's astute insight, it is
necessary to investigate whether the Example or Exception position more closely
adheres to the language of the Heck opinion. Because the current circuit court
split exists due to varying interpretations of the Heck decision by the respective
circuit courts, it is inherently difficult to assess whether the Example or the
Exception position is more consistent with Heck. However, the Example position
deviates less from the Supreme Court stance regarding when § 1 983 illegal search
claims can be pursued.

The Supreme Court in Heck132 expressly stated the Court's concern with
allowing civil actions to serve as a collateral attack on a criminal conviction:

"This Court has long expressed . . . concerns for finality and consistency and has

generally declined to expand opportunities for collateral attack."
133 The Court

continued, "[W]hen a state prisoner seeks damages in a § 1 983 suit, the district

court must consider whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence . . . ,"
134

Notably

absent from the previous quote by the Supreme Court is any blanket exception

carved out in the holding for § 1 983 claims brought pursuant to an illegal search.

If § 1983 illegal search claims were intended to be exempted from the black-letter

holding ofHeck&s the Exception position adherents maintain, it is unusual that
the Court failed to so state.

Moreover, even footnote seven ofthe Heck opinion, which is the sole source
of the Exception position's stance, provides permissive language that is more
plausibly construed as consistent with the Example position. Footnote seven

states in pertinent part that "a suit for damages attributable to an allegedly

unreasonable search may lie even ifthe challenged search produced evidence that
was introduced in a state criminal trial resulting in . . . conviction."

135 The

Court's use ofthe word "may" rather than "will" or "shall" is an important choice

oflanguage because it is evidence that the Supreme Court acknowledged only the

possibility that § 1983 illegal search claims will not necessarily impugn the

validity of the previous conviction. However, the Exception position's stance

that "in all cases" § 1983 illegal search claims can go forward goes beyond the

logical parameters of the word "may" and essentially interprets "may" as
analogous to "in all cases."

136
While such a textual construction would be

warranted had the word "will" or "shall" been used, the use of the word "may"
directly contradicts the idea that a blanket exception was intended. The Example

131. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).

132. 512 U.S. 477 (1994).

133. Id at 484-85 (citations omitted).

134. Mat 487.
135. Id at 487 n.7 (emphasis added).

136. Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir. 1998).



2002] HECK v. HUMPHREY 1 1 07

position, on the other hand, acknowledges that § 1983 illegal search claims may
sometimes be exempted from Heck's preclusive effect but leaves the decision to

a district court.
137

Stated simply, the word "may" more fittingly creates an
example than a "general exception."

138

C. "Necessarily " Resolving the Circuit Split

The Supreme Court must do more than declare that district courts must
determine on a case-by-case basis (as the Example position holds) whether a §
1 983 illegal search claim can proceed. District courts within the Seventh, Eighth,

Tenth, and Eleventh Circuits that currently allow § 1983 illegal search claims to

proceed irrespective ofthe failure to meet the favorable termination requirement

would still allow these claims to be brought because the district court would
simply hold in every case that the claims are not a collateral attack on the

previous conviction. Consequently, merely forcing the Exception adherents to

conduct a district court determination for each individual § 1983 illegal search

claim would not alter the current rule that § 1983 illegal search claims can go
forward "in all cases."

139
It is readily apparent, then, that to bridge the chasm that

separates the Exception and Example positions, the Supreme Court must go
further than merely mandating a case-by-case approach.

The current circuit court split emanates in part from differing interpretations
of the Supreme Court's use of the word "necessarily" in Heck.

140
The Court

stated:

[W]hen a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity ofhis conviction or sentence; if it would,

the complaint must be dismissed unless the plaintiffcan demonstrate that

the conviction or sentence has already been invalidated.
m

The Exception adherents interpret "necessarily" to mean that a § 1983 claim must
always, in every situation undermine the validity ofa criminal conviction for the

claim to be barred by Heck.
142

For example, a successful § 1983 suit for an

137. See Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995) (per curiam).

138. Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000).

139. Copus, 151 F.3dat648.

140. Heck, 512 U.S. at 487.

141. Id. (emphasis added).

142. Cf. Copus, 151 F.3d at 648. The Seventh Circuit discussed its interpretation of

'necessarily":

We need not speculate concerning which claims under § 1983 would not
"necessarily" imply the invalidity ofa civil plaintiffs underlying conviction because the

Supreme Court has answered this question. In Heck, the Court dropped a footnote to

describe the type ofaction which, "even ifsuccessful, will not demonstrate the invalidity

of any outstanding criminal judgment . . . [namely] a suit for damages attributable to an

allegedly unreasonable search . . . ."



1 108 INDIANA LAW REVIEW [Vol. 35:1085

unreasonable seizure brought after the plaintiffwas arrested and convicted for the
crime of resisting arrest would "necessarily" invalidate the conviction because
one of the elements of the crime of resisting arrest is that the police officer was
conducting a legal arrest.

143
Thus, if a plaintiffs § 1983 claim can only be

successful if it negates one ofthe elements ofthe crime that led to the plaintiffs

conviction, the Exception courts would hold that the claim is barred by Heck
because in all cases the claim would challenge the conviction. However, in the
case of § 1983 illegal search claims, Heck does not prohibit any of the claims
from being brought because there are situations in which the unreasonable search
claim will not "necessarily imply the invalidity" of the conviction.

144

The Example position adherents utilize a narrower view of the Supreme
Court's use of the word "necessarily" by conducting a case-by-case analysis. 145

The Second, Fifth, Sixth, and Ninth Circuits have held that if the § 1983 claim
will impugn the validity of the conviction in the instant case, then the claim
cannot proceed because it "necessarily" implies the invalidity ofthe conviction.

146

With respect to § 1983 illegal search claims, the Example position mandates that
some claims are barred pursuant to Heck while others are not because the
"necessarily" requirement is applicable to only the case before the court at the

time.
147

Therefore, there is a need for a district court determination regarding the

justiciability of the § 1983 illegal search claim.

In summary, the Exception and the Example positions differ in their

treatment of § 1983 illegal search claims because of the manner in which the
respective circuits construe the definition of "necessarily." The Exception
position holds that Heck precludes a § 1983 claim only when in all feasible cases

Id. (quoting Heck, 512 U.S. at 487 n.7).

143. Heck, 512 U.S. at 487 n.6; James v. York County Police Dep't, 167 F. Supp. 2d 719, 721

(M.D. Pa. 2001).

144. See Apampav. Layng, 157F.3d 1 103, 1 105(7thCir. 1998) ("The fact that some evidence

used in atrial is tainted by illegality does not necessarily undermine the conviction " (emphasis

added)).

145. See Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995). While criticizing the Seventh

Circuit's application of Heck, the Sixth Circuit in Schilling remarked, "The fact that a Fourth

Amendment violation may not necessarily cause an illegal conviction does not lessen the

requirement that a plaintiff show that a conviction was invalid as an element of constitutional

injury" Id. (emphasis added). This passage reflects the Sixth Circuit's rejection ofthe Exception

position's interpretation of "necessarily" as meaning in all cases the claim must undermine a

conviction.

1 46. E.g., Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995) (per curiam). Shamaeizadeh

v. Cunigan, 182 F.3d 391 (6th Cir. 1999) summarized the Mackey court as holding that "Fourth

Amendment claims could be brought under § 1983 notwithstanding a valid conviction, but only

once the district court has made an independent determination that success on the § 1983 claim

would not demonstrate the invalidity of the conviction." Id. at 395.

1 47. See Shamaeizadeh, 1 82 F.3d at 396; Covington v. City ofNew York, 1 7 1 F.3d 1 1 7, 1 23
(2d Cir. 1999) (remanding the case to the trial court to determine if, pursuant to the facts of this

particular case, the § 1983 claims asserted would invalidate the conviction if successful).



2002] HECK v. HUMPHREY 1 1 09

the claim must undermine the validity of the conviction.
148

Because § 1983

illegal search claims do not always collaterally attack the previous conviction,

these claims do not satisfy the "necessarily" language of Heck that bars most §
1983 claims. Conversely, the Example position adjudicates § 1983 illegal search

claims on a case-by-case basis and thus construes "necessarily" to mean that Heck
prohibits a § 1983 claim if, in that particular case, the claim impugns the validity

of the previous conviction.
149

The Example position's interpretation ofthe Heckopinion, and "necessarily"
in particular, is preferable to the Exception position for virtually all of the same

reasons as discussed in Part IV.A. of this Note.
150

Adjudicating § 1983 illegal

search claims on an individual basis with a sensitivity towards the particular fact

pattern ofthe case grants the Example position the precision to determine when
a claim will "necessarily imply the invalidity" of the conviction.

151
While the

Exception position adherents are correct to insist that not all § 1 983 illegal search

claims "necessarily" threaten the validity of a previous criminal conviction,
152

certainly, given the right set ofcircumstances, some claims inevitably will serve

as a collateral attack. Therefore, a judicial determination in each case is

warranted. Neither a blanket prohibition nor an automatic ability to proceed with

the § 1983 claim does justice to the vast differences that will appear among
various § 1983 illegal search claims.

Conclusion

The Example position offers the preferable method of adjudicating § 1983
illegal search claims. The Example position preserves precious judicial
resources, while enabling federal judges to reach a fair and reasonable result,

because hearings are conducted in every § 1983 illegal search case to ensure the

claim is not a collateral attack on a previous criminal conviction.

The Supreme Court will not successfully resolve the current circuit split by
merely declaring the Example position as the preferable position. However, the
divergent means of adjudication between the Example and Exception positions
can be resolved by the Supreme Court in a simple, even novel, way. The source
of the circuit court dispute emanates from different meanings assigned to the

word "necessarily" as it is used in the Heck decision. 153 The substantial
differences in treatment of§ 1983 illegal search claims among circuits that adhere
to the Example and Exception positions can be resolved with a simple, but
thorough, Supreme Court clarification of its use of "necessarily" in Heck. No
monumental change in substantive law or judicial restructuring is necessary to

148. See Apampa, 157 F.3d at 1 105; Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir.

1998).

149. See Schilling, 58 F.3d at 1086; Mackey, 47 F.3d at 746.

150. See supra Part IV.A.

151. 512 U.S. 477, 487 (1994).

152. See Apampa, 157 F.3d at 1 105; Copus, 151 F.3d at 648.

153. //ec*, 512 U.S. at 487.



1 1 10 INDIANA LAW REVIEW [Vol. 35:1085

provide all § 1983 litigants, irrespective of the circuit, a consistent and

meaningful means of adjudicating their claim.

In a nation where federal law is the supreme law of the land pursuant to the
wishes of our Founding Fathers,

154
it is the federal judiciary's profound

responsibility to apply federal law in an impartial and judicious manner. When
federal substantive law varies from circuit to circuit, such consistent application

is impossible and serves to undermine the legitimacy and integrity of the legal
process. It is unacceptable for plaintiffs in the federal system to have the viability

oftheir § 1983 illegal search claims decided by geography rather than the merits

ofthe case. Because uneven application ofthe law invariably makes for bad law,
the Exception and Example positions must be reconciled through a carefully
crafted Supreme Court decision. Uniformity of § 1983 illegal search law must
be restored to the federal judiciary.

154. See U.S. CONST, art. VI, cl. 2. This provision is known informally by constitutional

scholars as the "Supremacy Clause."