{"id":1656,"date":"2008-01-04T09:19:18","date_gmt":"2008-01-04T09:18:48","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-01-04T09:18:48","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1656","title":{"rendered":"Heck<\/em>‘s fn. 7 does not exempt Fourth Amendment claims in Ninth Circuit"},"content":{"rendered":"

Heck<\/em><\/a>‘s fn. 7 does not create a Fourth Amendment exception in the Ninth Circuit. Here, the legality of plaintiff’s stop cannot be inquired into without violating Heck<\/em>. Torres v. County of San Diego, 2008 U.S. Dist. LEXIS 75 n. 3 (S.D. Cal. January 2, 2008):<\/p>\n

In Heck<\/em>, the Supreme Court stated in a footnote: “[A] suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the \u00a7 1983 plaintiff’s still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a \u00a7 1983 action, even if successful, would not necessarily imply that the plaintiff’s conviction was unlawful.” 512 U.S. at 487 n. 7. Some circuits have held that this footnote creates a general exception to Heck for \u00a7 1983 Fourth Amendment unreasonable search and seizure claims. See Harvey v. Waldron<\/em>, 210 F.3d 1008, 1015 (9th Cir. 2000). The Ninth Circuit does not construe footnote seven as creating a general exception, but, rather, examines the facts and circumstances of the particular case before it to determine whether the successful prosecution of the plaintiff’s \u00a7 1983 claim necessarily implies the invalidity of the plaintiff’s earlier conviction. See, e.g., Smith v. City of Hemet<\/em>, 394 F.3d 689, 698-99 (9th Cir. 2005).<\/p><\/blockquote>\n

Defendant not constitutionally required to have a Miranda<\/em> warning before he is asked for consent under the totality of circumstances standard. United States v. Arciniega, 2007 U.S. Dist. LEXIS 95057 (D. Neb. December 28, 2007).*<\/p>\n

Plainitff stated sufficient facts to get past a motion to dismiss for excessive force, and the defendant’s qualified immunity defense fails. “If Defendants drew their weapons against unarmed, unresisting Plaintiffs and handcuffed them for an investigatory detention after an investigatory stop without probable cause, a reasonable officer in the same circumstances would not believe such actions to be lawful.” Haddox v. City of Fresno, 2007 U.S. Dist. LEXIS 95180 (E.D. Cal. December 27, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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