and Ninth Circuits.
2' The court noted the "individualized approach" under-taken in Mackey and examined the record to determine whether the evidence obtained in the allegedly illegal search formed the basis for the plaintiff's conviction.
245Concluding that prosecutors subsequently used the evidence in the criminal proceedings, the court dismissed the plaintiff's
§ 1983 claim forfailure to show favorable termination.
2*Much like this district court, other circuit courts have relied onMackey as persuasive authority supporting a
case-damages for an allegedly unlawful search and seizure. Id. at 745. The court examined Heck, then stated that it could not yet determine whether Mackey's claim would imply the invalidity of his conviction. Id: at 746. The court ordered the district court to stay the civil proceedings until the conclusion of the pending criminal case. Id
237. See id. at 746 (stating that Mackey apparently was confined pursuant to indiciment).
238. Id 239. Id 240. Id.
241. See id. (ordering stay until conclusion of criminal proceedings because "until that time it may be difficult to determine the relation, if any, between the [civil and criminal cases]").
242. See Simpson v. Rowan, 73 F.3d 134, 139 (7th Cir. 1995) (ordering stay ofplaintiffs Fourth Amendment claims until conclusion of state criminal appeals).
243. See Heck v. Humphrey, 512 U.S. 477,487 (1994) (requiring plaintiffto demonstrate favorable termination).
244. See Salts v. Moore, 107 F. Supp. 2d 732, 737 (N.D. Miss. 2000) (calling Mackey approach "somewhat analogous" to approach of Second, Sixth, and Ninth Circuits).
245. Id.
246. See idi at 738 ("Salts' success in his claims against the Defendants would necessarily draw into question the validity of his conviction or sentence.").
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by-case determination in footnote seven cases." At the very least, one cannotread the Fifth Circuit as supporting a general exception approach.24 8
5. The Case-by-Case Determination: Promoting the Principles of Heck As the decisions from the Second, Fifth, Sixth, and Ninth Circuits demon-strate, the individualized approach is a superior interpretation of footnote seven. First, consider once again the disputed language of the footnote:
For example, 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 § 1983 plaintiff's still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiff's convic-tion was unlawfiL249
The first sentence utilizes permissive language ("may") rather than an absolute term ("shall"). With the ambiguity of the second sentence, one can at least argue that the phrase "such a § 1983 action" only describes illegal search claims that feature one of the listed doctrines, not all illegal search claims. Admittedly, an argument based solely on the text of the footnote does not point to either camp very clearly. When read in the context of the overall Heck opinion, though, the individualized approach becomes the more appro-priate one.
The general exception does not allow for the possibility that success on a § 1983 illegal search claim could implicate an underlying conviction."0 The individualized approach recognizes that such a categorical analysis is theoreti-cally cognizable but impractical. If a state appellate court reverses a convic-tion because an invalid search produced the evidence on which the convicconvic-tion was based, then surely a § 1983 damages suit questioning that same search would just as strongly implicate the conviction."1 If we take seriously the
247. See Harvey v. Waldron; 210 F.3d 1008, 1015 (9th Cir. 2000) (citing Mackey v.
Dickson, 47 F-3d 744, 746 (5th Cir. 1995), as supporting interpretations of Second and Sixth Circuits); Shamacizadch v. Cunigan, 182 F.3d 391,395 (6th Cir. 1999) (same).
248. See Mackey v. Dickson, 47 F3d 744, 746 (5th Cir. 1995) (stating that accrual of claim would depend on relationship between plaintiff's civil and criminal actions).
249. Heck, 512 U.S. at 487 n.7 (first and second emphasis added, third emphasis in orig-inal) (citations omitted).
250. See Copus v. City of Edgerton, 151 F.3d 646,648 (7th Cir. 1998) ("Fourth Amend-ment claims for unlawful searches or arrests do not necessarily imply a conviction is invalid, so in all cases these claims can go forward."); cf. Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996) (identifying "general rule" of immediate accrual, but acknowledging
"limited circumstances" in which civil claim would imply invalidity of criminal conviction).
251. See Harvey v. Waldron, 210 F.3d 1008,1015-16(9th Cir. 2000) (statingthat evidence from unlawful search was essential element of criminal charges against plaintiff); Shamaeizadch 1533
58 WASH. &LEE L. REV 1493 (2001)
values of consistency, finality, and federalism that the Heck decision
pro-motes,2 then a case-by-case determination errs appropriately on the side of these values.13 Itis axiomatic that an unaccrued § 1983 claim has nopossibil-ity of aggravating federal-state tension by interfering in the state criminal
process.Furthermore, the individualized approach promotes these values without
unduly sacrificing a plaintiff's ability to seek redress via §
1983 for a Fourth Amendment violation. As noted previously, the general exception rule may seem more plaintiff-friendly by allowing immediate accrual of § 1983 illegal search claims, but the dark consequence is that plaintiffs in these courts face expiration ofthe statute of limitations when the litigants more properly should focus on defending themselves against the underlying criminal charges."The Sixth Circuit rightfully criticized this tug-of-war on criminal defendants:
To require a defendantin a criminalproceedingto file a civil action raising any potential § 1983 claims within one year ofany alleged illegal searches or otherallegedviolations of constitutional rights, claims whichthefederal court mustthen abstainfrom resolvinguntil the disposition ofthe criminal proceedings, would misdirect the criminal defendant Surely, just as a convicted prisoner must first seek relief through habeas corpus before his
§ 1983 action can accrue, so too should the defendant in a criminal pro-ceeding focus on his primary mode of relief- mounting a viable defense to the charges against him-before turning to a civil claimunder § 1983.155 Under the individualized approach, only one particular type of § 1983
plaintiff needs to
worryabout concurrently filing his
§ 1983 action: one witha reason to know (likely due to a ruling at a state pre-trial suppression hearing)
v. Cunigan, 182 F.3d 391,393 (6th Cir. 1999) (stating that affidavit did not support probable cause for issuance of search warrant once court redacted information obtained through earlier illegal search); Woods v. Candela, 47 F.3d 545, 546 (2d Cir. 1995) (stating that plaintiff's
§ 1983 claims rested on same grounds as criminal appeal and thus would have implied invalid-ity of conviction).
252. See Heck v. Humphrey, 512 U.S. 477, 485 (1994) (stating Court's concerns of consistency, finality, hnd prevention of collateral attack).
253. See Harvey, 210 F.3d at 1015 (stating that approach of Second and Sixth Circuits
"will... fuifili the Heck Court's objectives of preserving consistency and finality, and prevent-ing 'a collateral attack on [a] conviction through the vehicle of a civil suit'" (alteration in original) (citation omitted)).
254. See, e.g., Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 558 (10th Cir. 1999) (ruling that Heck never barred plaintiff's illegal search claim, making that claim now stale under statute of limitations); Booker v. Ward, 94 F.3d 1052, 1057 (7th Cir. 1996) (dismissing claim for illegally obtained confession, on which state appellate court based its reversal of plaintiff's conviction, due to plaintiff's failure to bring civil case within two-year statute of limitations);
Franklin v. Summers, 1994 U.S. App. LEXIS 29997, at *3 (7th Cir. Oct. 24, 1994) (dismissing illegal search claim of incarcerated plaintiff as time-barred).
255. Shamaeizadeh, 182 F.3d at 399.
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either that a footnote seven doctrine like inevitable discovery, independent