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

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. Cost/Benefit Analysis

Qualified Immunity

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.  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.


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). Claims 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.

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.