In a 1983 case, plaintiff was prosecuted allegedly without probable cause. There was a state mechanism for determining probable cause for the prosecution, but, here, there were facts available to the police who failed to check into them until after the prosecution was initiated. Whether the investigation was incomplete or the officers were reckless could not yet be determined, and summary judgment was denied. OPW Fueling Components v. Works, 2007 U.S. Dist. LEXIS 34083 (S.D. Ohio May 9, 2007):<\/p>\n
The Sixth Circuit has held that “where a state affords an opportunity for an accused to contest probable cause at a preliminary hearing and the accused does so, a finding of probable cause by the examining magistrate or state judge should foreclose relitigation of that finding in a subsequent \u00a7 1983 action.” Coogan v. City of Wixom<\/em>, 820 F.2d 170, 174-75 (6th Cir. 1987), overruled on other grounds by Frantz v. Village of Bradford<\/em>, 245 F.3d 869, 874 (6th Cir. 2001). Only where there is evidence of false statements or misrepresentations by law enforcement officials during the criminal proceeding does the finding of probable cause in a preliminary state criminal hearing lose its preclusive effect. See Hinchman v. Moore<\/em>, 312 F.3d 198, 202-03 (6th Cir. 2002); Darrah v. City of Oak Park<\/em>, 255 F.3d 301, 311 (6th Cir. 2001). Here, Works and the Estes do not argue that they were unable to contest probable cause at a preliminary hearing. Instead, the[y] allege that Jones and Rogers knew or should have known that the charges against them were false, lacked probable cause, or were reckless in that regard.<\/p>\n
At the preliminary hearing, Jones testified that he was not aware of anyone giving Works permission to [] remove the nozzles on April 15, 2005–the date Works was videotaped. However, Jones stated that he later learned that Works had been given permission to remove some materials in August of 2005. It is not clear from the state court record whether these statements by Jones were false or misleading or merely indicate a[n] incomplete investigation on behalf of Jones and Rogers. At this stage of the proceedings, based upon these statements, in combination with the allegations contained in the Amended Counterclaim and Third Party Complaint, the Court must find that Works and the Estes have properly alleged a lack of probable cause. As a result, the Court DENIES Jones and Rogers Motion to Dismiss Works and the Estes’ claim for malicious prosecution under section 1983.<\/p><\/blockquote>\n
In a convoluted civil case involving a Heck<\/em> defense, the plaintiffs contended that the state investigators withheld information of wiretaps from them until after they were released from prison. Following circuit precedent, the court held the claims barred by Heck.<\/em> Whitaker v. Garcetti, 2007 U.S. App. LEXIS 11012 (9th Cir. May 10, 2007):<\/p>\n
Plaintiffs also argue for a “belated discovery” exception to Heck for individuals who, because of a defendant’s actions, do not discover a constitutional violation until after their confinement ends. They argue that Plaintiffs were “kept in the dark by the Defendants and the only way they have been kept from seeking relief during their confinement was due to Defendants’ successful concealment.” We need not reach this question. Assuming without deciding that such an exception should exist, no Plaintiff would qualify for it. Contrary to Plaintiffs’ flat assertion, the Portillo Plaintiffs knew about the handoff procedure less than eight months after they pleaded guilty, while each either was in jail or on parole, and Gaxiola and Gastelum knew about the handoff before they pleaded guilty. Indeed, when Plaintiffs filed their first complaint in 1999, all Plaintiffs (with the exception of Whitaker, who was not convicted of any crime) remained in prison or on parole.<\/p>\n
At oral argument, Plaintiffs asserted for the first time that the judicial deception claim is sufficiently attenuated from the evidence to avoid the bar of Heck<\/em>. This new argument runs counter to Plaintiffs’ theory throughout this case–that an unbroken chain linked the improper, undisclosed wiretaps to the surveillance and the evidence used against Plaintiffs at trial. It is too late for Plaintiffs to change theories now. See Smith<\/em>, 194 F.3d at 1052 (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.”); Monetary II Ltd. P’ship v. Comm’r<\/em>, 47 F.3d 342, 347 (9th Cir. 1995) (“As a general rule, an appellate court will not consider arguments which were not first raised before the district court, absent a showing of exceptional circumstances.” (internal quotation marks omitted)).<\/p>\n
In short, we hold that Heck<\/em> bars Portillo, Avalos, Martinez, Delgado, Carrizoza, Gaxiola, and Gastelum from bringing suit for declaratory relief or damages on their judicial deception and handoff claims.<\/p><\/blockquote>\n
Consent was obtained from a motorist for a search as found by his answers and hand gestures. The fact consent was sought while the officer was holding defendant’s driver’s license was not determinative. United States v. Burnett, 2007 U.S. Dist. LEXIS 33894 (E.D. Ark. May 7, 2007):<\/p>\n
Burnett argues that the search was not consensual because when Coleman asked him if he could search the vehicle, Coleman was holding his driver’s license and he was not free to terminate the encounter. However, consent is not the product of coercion merely because the officer requesting consent has not finished his investigation of the driver’s license or returned the license. See United States v. Siwek,<\/em> 453 F.3d 1079, 1084 (8th Cir. 2006) (citing United States v. Fuller<\/em>, 374 F.3d 617, 622 (8th Cir. 2004)). Furthermore, an officer is not required to inform a subject that he is free to leave and refuse a search before consent to search may be deemed voluntary. Id<\/em>.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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