RSS Feed

Can I file a civil rights claim after my conviction was reversed for an illegal search or 4th amendment violation?


January 11, 2021 by Tom Roberts, Esq.

So your conviction was overturned because the evidenced was suppressed under the exclusionary rule due to a violation of the 4th Amendment.  Does that mean you can file a civil rights suit against the officer for violating your 4th Amendment rights?


Here are the issues:

  1. Qualified Immunity

  2. Statute of Limitations

  3. 5th Amendment Risks

  4. Malicious Prosecution – 4th Amendment Seizure

  5. Damages

  6. Cost/Benefit Analysis

Qualified Immunity - Federal 4th Amendment Claim

Even though the criminal court has determined the officer violated the 4th Amendment and that the evidence is excluded, it does not necessarily mean that you will be able to successfully sue the officer for the civil rights violation.  In a federal claim under 42 USC § 1983, the 1st hurdle will be to show that the officer is not entitled to “qualified immunity.”  This means you must prove that the officer knew or should have known that his actions violated the clearly established law at the time your 4th Amendment rights were violated.  If you don’t overcome this hurdle you loose your civil rights suit. “Qualified immunity shields government officials performing discretionary functions” from personal liability for damages under § 1983, “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006) (internal quotation marks omitted). Government officials “are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589, 199 L. Ed. 2d 453 (2018) (internal quotation marks omitted).  See Feminist Majority Found. v. Hurley, 911 F.3d 674, 699 (4th Cir. 2018)

Question: What is Qualified Immunity? Answer: A judge made "get out of jail" card for police officers who violate the Constitution.

Statue of Limitations

There are time limits that apply to the filing of law suits.  This is called the “statute of limitations.”

Constitutional and related common law tort claims are subject to a two-year statute of limitations in Virgnia.

Common law claims for gross negligence, false arrest, and false imprisonment under Virginia law are subject to Virginia’s two-year statute of limitations for personal injury actions. See Va. Code § 8.01-243(A).

 The Fourth Circuit has held that this two-year statute of limitations also applies to § 1983 claims. Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 735 (4th Cir. 1991).  And because § 1981 claims against governmental officials are subject to the same requirements as § 1983 claims, Virginia’s two-year statute of limitations applies to plaintiff’s § 1981 claim as well. See Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (analyzing plaintiff’s § 1981 claim under the standards for § 1983 claims). C
laims under § 1985 are also governed by the local statute of limitations for personal injury actions, which, again, is Virginia’s two-year statute of limitations. See Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000). Stewart v. Holder, No. 1:16-cv-682, 2017 U.S. Dist. LEXIS 209561, at *10 n.7 (E.D. Va. July 19, 2017)  

Question: What is the Statute of Limitations? Answer: The time you have to file your suit before it's too late.

Tolling of the Statute of Limitations

In a few circumstances the deadline imposed by the statute of limitations may be pushed back or “tolled”.  

Some of those that may apply: 

VA § 8.01-299(K) 

K. Suspension of limitations during criminal proceedings. — In any personal action for damages, if a criminal prosecution arising out of the same facts is commenced, the time such prosecution is pending shall not be computed as part of the period within which such a civil action may be brought. For purposes of this subsection, the time during which a prosecution is pending shall be calculated from the date of the issuance of a warrant, summons or capias, the return or filing of an indictment or information, or the defendant’s first appearance in any court as an accused in such a prosecution, whichever date occurs first, until the date of the final judgment or order in the trial court, the date of the final disposition of any direct appeal in state court, or the date on which the time for noting an appeal has expired, whichever date occurs last. Thereafter, the civil action may be brought within the remaining period of the statute or within one year, whichever is longer.


If a criminal prosecution is commenced and a grand jury indictment is returned or a grand jury indictment is waived after the period within which a civil action arising out of the same set of facts may be brought, a civil action may be brought within one year of the date of the final judgment or order in the trial court, the date of the final disposition of any direct appeal in state court, or the date on which the time for noting an appeal has expired, whichever date occurs last, but no more than 10 years after the date of the crime or two years after the cause of action shall have accrued under § 8.01-249, whichever date occurs last.


Additionally, if incarcerated wrongfully, it may be possible to argue that the violation was continuing and begins to run from the time of release.

4th Amendment - Malicious Prosecution

For starters, the proceedings must end “not unfavorable” to you. You must be acquitted, or the charges dropped or your conviction overturned.

The Supreme Court explained:

“We have repeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability.” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986) (internal quotation marks omitted). “Over the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well.” Carey v. Piphus, 435 U.S. 247, 257-258, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978). Thus, to determine whether there is any bar to the present suit, we look first to the common law of torts. Cf. Stachura, supra, at 306.

[1C] [6] The common-law cause of action for malicious prosecution provides the closest analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process. “If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 888 (5th ed. 1984). But a successful malicious prosecution plaintiff may recover, in addition to general damages, “compensation for any arrest or imprisonment, including damages for discomfort or injury to his health, or loss of time and deprivation of the society.” Id., at 887-888 (footnotes omitted). See also Roberts v. Thomas, 135 Ky. 63, 121 S.W. 961 (1909).

[1D] [7A]One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused. Prosser and Keeton, supra, at 874; Carpenter v. Nutter, 127 Cal. 61, 59 P. 301 (1899).

Heck v. Humphrey, 512 U.S. 477, 483-84, 114 S. Ct. 2364, 2370-71 (1994)

Damages other than your arrest or conviction necessary for federal illegal search claim

You must be able to show that the illegal search and seizure caused more harm that your arrest and/or conviction. According to one court in the 4th Circuit, those damages are excluded under Heck v. Humphrey Stephney v. Lott, No. 8:05-2740-MBS-BHH, 2005 U.S. Dist. LEXIS 50548, at *7 (D.S.C. Oct. 14, 2005) But Heck v Humphrey actually dealt with excluding such damages when the arrest and conviction had not been overturned.

Keep in mind, a claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 2372 (1994)

The "Exclusionary Rule" does not apply to civil cases.

If the illegal search discovered contraband, that evidence will probably be admissible in the civil trial – and unless you pull a jury of reprobates, they will not likely look favorably upon you. The Supreme Court has “never applied the exclusionary rule to civil cases, state or federal.” Wren, 130 F.3d at 1158. See also Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000) (agreeing with Townes); Townes, 176 F.3d at 149 (“[T]he fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant.”); Padilla v. Miller, 142 F. Supp. 2d 479, 492 (M.D. Pa. 2001). Nixon v. Applegate, No. 2:06-2560-CMC-RSC, 2008 U.S. Dist. LEXIS 13016, at *12-13 (D.S.C. Feb. 19, 2008)

Think long and hard about waiving your 5th Amendment right to remain silent!

The Fifth Amendment provides that no one “shall be compelled in a criminal case to be a witness against himself….” U.S. Const., amend. V.

Often, on reversal, the court remands the case to the trial court and the state dismisses the action without prejudice—meaning that if the state can convict you without the evidence excluded.  They have the right to bring and prosecute you again–“double jeopardy” does not attach.

You would not want to file suit and provide an admission in place of the evidence excluded – or you will be convicted again notwithstanding the prior exclusion!!!

You can’t use the 5th Amendment as a sword and shield in civil litigation.  


The United States Supreme Court has broadly interpreted this privilege, finding that it allows individuals “not to answer questions put to them in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate [them] in future criminal proceedings.” Leftowitz v. Turley, 414 U.S. 70, 77 (1973). However, there is no “blanket” Fifth Amendment right to refuse to answer questions in a civil case. North Am. Mortgage Investors v. Pomponio, 219 Va. 914, 918, 252 S.E.2d 345, 348 (1979). “It is for the court to say whether [the individual’s] silence is justified.” Id. Quoting Rogers v. United States, 340 U.S. 367, 95 L. Ed. 344, 71 S. Ct. 438 (1951).  Hicks v. Been, 57 Va. Cir. 151, 153 (Cir. Ct. 2001)


Simply put – not every civil rights violation is worth pursuing.  Litigation is expensive.  It often requires thousands of dollars and hours of time, with no guarantee that the plaintiff will recover any of the expenses or the law firm will be paid from the defendant.  Even if a court determines that a violation occurred and determines that the defendant must pay attorney’s fees – the fees that the defendant may be ordered to pay may be far less than the plaintiff is contractually obligated to pay for those legal services.

DAMAGES:  Nobody can predict how much a judge or jury will award for physical and emotional injuries. 

The reality is that not all plaintiffs are as likely to be a person the judge or jury identifies with.  Bluntly, often a hardened criminal should expect less than an outstanding member of the community for the same Constitutional injury.  The jury is less likely to give a junkie as much money as one who will not likely blow the award on drugs and hookers. 


The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.


Sorry, comments are closed.

Search Site

This website provides hundreds of articles and commentaries related to the law for informational purposes. It is not intended as "legal advice" to you.

Recent Blogs


Thomas H. Roberts & Associates, PC