Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. DR060609
McGuiness, P.J.
Melvin Phillips was arrested and charged with grand theft and possession of cocaine and drug paraphernalia. After he admitted a probation violation for possession of drug paraphernalia, Phillips sued the arresting officers and the City of Blue Lake under 42 U.S.C. § 1983. The trial court dismissed this suit on demurrer based on Heck v. Humphrey (1994) 512 U.S. 477 (Heck), which precludes the prosecution of any section 1983 claim that implicates the lawfulness of the defendant’s conviction. We agree that the claim is barred and affirm the judgment of dismissal.
All statutory references are to the title 42 of the United States Code unless otherwise stated.
BACKGROUND
On September 23, 2003, Phillips was granted a conditional revocable release for three years following his conviction for committing a battery on a peace officer. (Pen. Code, § 243, subd. (b).) Just over two years later, in October 2005, the Humboldt County District Attorney filed a complaint alleging Phillips had committed grand theft by unlawfully taking cash and housing from the American Red Cross (Pen. Code, § 487, subd. (a)) and had violated Health and Safety Code sections 11350, subdivision (a) and 11364 by possessing cocaine and paraphernalia used for injecting or smoking a controlled substance. Based on the filing of this complaint, the district attorney also filed a petition to revoke Phillips’s conditional revocable release. On November 4, 2005, Phillips entered a guilty plea admitting the violation of probation, and probation was reinstated.
On September 15, 2006, Phillips filed a complaint for defamation and violation of section 1983 against the City of Blue Lake, David Gundersen, Blue Lake’s Chief of Police, and Damon Pierce, who was identified as a corporal in the Blue Lake Police Department. The trial court sustained a demurrer to both causes of action but allowed Phillips leave to amend his section 1983 claim.
On February 8, 2007, Phillips filed an amended complaint for compensatory and punitive damages raising two claims under section 1983—one against Officers Gundersen and Pierce, and one against the City of Blue Lake. The complaint alleges that on October 6, 2005, Officers Gundersen and Pierce and another police officer arrested Phillips at the Red Lion Inn in Eureka, California, on the ground that Phillips had fraudulently obtained lodging at the inn and had obtained cash from the Eureka chapter of the American Red Cross by falsely claiming he had been displaced from his Texas home by Hurricane Rita. The officers searched Phillips’s hotel room “without his permission and without a search warrant and claimed to have found a small quantity of cocaine and paraphernalia used to smoke or inject a controlled substance.” According to the complaint, the trial court dismissed the “fraud” charge at the preliminary hearing because Phillips demonstrated he truly qualified for American Red Cross assistance due to displacement from his Texas home. Although the court held him to answer on the cocaine possession charge, the complaint states this charge was dismissed pursuant to the plea bargain in which Phillips admitted a probation violation for possession of drug paraphernalia.
Phillips labels the offense “fraud,” but the criminal complaint alleges a violation of Penal Code section 487, subdivision (a), which defines the crime of grand theft.
The complaint alleges the arresting officers investigated and arrested Phillips for the purpose of intimidating Phillips’s wife into dropping a complaint she had raised against these officers and the Blue Lake Police Department. According to the complaint, Phillips never possessed cocaine or drug paraphernalia and the defendants lacked probable cause to arrest him. The complaint claims this wrongful arrest violated Phillips’s constitutional rights under the Fourth and Fourteenth Amendments and caused Phillips to suffer “embarrassment, mental anguish and emotional distress,” as well as lost customers and income. The complaint also includes a separate cause of action against the City of Blue Lake claiming, based on lengthy allegations about police officers’ ill treatment of Phillips’s wife and Phillips himself, that the city, city council, mayor and city manager have a policy “to run an aggressive police department which routinely violates the rights of citizens by running, so called, undesirable individuals, out of town, or arresting them on unfounded charges.” Phillips alleges his wrongful arrest resulted from this policy.
The defendants demurred again, and on April 18, 2007, the trial court sustained their demurrer to the amended complaint without leave to amend. Having concluded an award of damages would imply the previous revocation of probation was invalid, the trial court ruled Phillips’s section 1983 claim was barred under the reasoning of Heck, supra, 512 U.S. 477.
DISCUSSION
On appeal from a judgment following a demurrer, “[t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) We affirm the judgment if demurrer is well taken on any ground, but we reverse if the complaint states a cause of action under any possible legal theory. (Id. at p. 967.) It is an abuse of discretion for the trial court to sustain a demurrer without leave to amend if the plaintiff demonstrates a reasonable possibility that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The sole question in this appeal is whether, having admitted a probation violation for possession of unlawful materials, Phillips may now maintain a section 1983 claim against police officers for the arrest and search that led to this conviction. We must look to federal law for the answer. (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1408; Buenavista v. City and County of San Francisco (1989) 207 Cal.App.3d 1168, 1174; see also Wallace v. Kato (2007) __ U.S. __ [127 S.Ct. 1091, 1095] [“the accrual date of a [section] 1983 cause of action is a question of federal law that is not resolved by reference to state law”].)
Although he was charged with possession of cocaine and drug paraphernalia, the complaint states only that Phillips admitted a violation of probation based on possession of paraphernalia. The court minutes of Phillips’s plea do not specify the basis for his admission.
In Heck, supra, 512 U.S. at pp. 478-479, a prisoner whose appeal from his conviction was pending sued state and county officials under section 1983 for alleged misconduct in connection with his arrest and prosecution. After considering the interplay between section 1983 and requirements of the federal habeas corpus statute (28 U.S.C. § 2254), the United States Supreme Court concluded “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to [section] 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution.” (Heck, supra, 512 U.S. at p. 486, fn. omitted.) Accordingly, the court held, “to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a [section] 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus [citation].” (Heck, supra, 512 U.S. at pp. 486-487, fn. omitted.) The crucial question in assessing the validity of a prisoner’s section 1983 claim is thus “whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” (Heck, supra, 512 U.S. at p. 487.) This rule applies to probation and parole revocation judgments as well as criminal convictions. (Crow v. Penry (10th Cir. 1996) 102 F.3d 1086, 1087.)
The complaint here alleges the police lacked probable cause to arrest Phillips and search his hotel room and these actions, taken under color of law, deprived Phillips of his rights under the Fourth and Fourteenth Amendments. However, a judgment in Phillips’s favor would “necessarily imply” that the revocation of his probation for possession of drug paraphernalia was invalid. If police officers lacked probable cause to arrest Phillips, they also lacked a legal basis to search his hotel room and seize contraband and drug paraphernalia, since the complaint alleges the officers had no search warrant and did not obtain Phillips’s consent. Under the circumstances alleged in the complaint, the paraphernalia would have been subject to suppression as the fruit of an illegal arrest and search, and there would have been no evidence to support the probation revocation for possession of drug paraphernalia. In other words, a finding in Phillips’s favor in this civil case would mean that the sole evidence supporting Phillips’s probation revocation was unlawfully obtained—a conclusion that necessarily implies the revocation itself was legally invalid. (See Hudson v. Hughes (5th Cir. 1996) 98 F.3d 868, 872 [section 1983 claim alleging false arrest necessarily implied invalidity of plaintiff’s conviction as felon in possession of a firearm because, if the arrest were illegal, firearm discovered in the course of arrest would have been subject to suppression]; see also Covington v. City of New York (2d Cir. 1999) 171 F.3d 117, 123 [observing that “in a case where the only evidence for conviction was obtained pursuant to an arrest, recovery in a civil case based on false arrest would necessarily impugn any conviction resulting from the use of that evidence”], overruled on another ground in Wallace v. Kato, supra, 127 S.Ct. at p. 1098.) Because Phillips does not contend the revocation judgment has been reversed, expunged, declared invalid or questioned in a habeas proceeding, he cannot bring a cause of action under section 1983. (Heck, supra, 512 U.S. at pp. 487, 489.)
Because this appeal is taken from a dismissal on demurrer, we must assume the truth of these allegations. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) However, assuming a judge dismissed the criminal “fraud” charge against Phillips for insufficient evidence, as the complaint alleges, this act is not the equivalent of “a judicial finding that the officers lacked probable cause to arrest,” as Phillips contends. In fact, the record contains no such finding.
In Wallace v. Kato, the United States Supreme Court ruled, contrary to the conclusions reached by certain federal circuit courts, that the Heck rule applies only to section 1983 claims that would impugn an extant criminal conviction; it does not bar such claims brought before the plaintiff has actually been convicted. (Wallace v. Kato, supra, 127 S.Ct. at p. 1098.)
It is true, as Phillips points out, that Heck does not bar all section 1983 claims relating to facts surrounding the plaintiff’s arrest or conviction. The Supreme Court explained civil claims that do not demonstrate the invalidity of an outstanding criminal judgment should be allowed to proceed, and, in a footnote, it cited claims premised on an illegal search as a possible example. (Heck, supra, 512 U.S. at p. 487 & fn. 7.) Specifically, the court observed “a suit for damages attributable to an unreasonable search may lie even if the challenged search produced evidence that was introduced” (id. at p. 487, fn. 7, italics added) in the plaintiff’s criminal trial because, in light of “doctrines like independent source and inevitable discovery [citation], and especially harmless error [citation], such a [section] 1983 action, even if successful, would not necessarily imply that the plaintiff’s conviction was unlawful.” (Heck, supra, 512 U.S. at p. 487, fn. 7.) In such a case, however, the court stressed that the section 1983 plaintiff would have to “prove not only that the search was unlawful, but that it caused him actual, compensable injury [citation], which . . . does not encompass the ‘injury’ of being convicted and imprisoned . . . .” (Heck, supra, 512 U.S. at p. 487, fn. 7.)
Although some circuits have interpreted this footnote as creating “a general exception to Heck for section 1983 Fourth Amendment unreasonable search and seizure claims” (Harvey v. Waldron (9th Cir. 2000) 210 F.3d 1008, 1015 [citing decisions from the Seventh, Eighth, Tenth and Eleventh Circuits], overruled on another ground in Wallace v. Kato, supra, 127 S.Ct. at p. 1098 (Harvey)), others—including the Ninth Circuit—have reached the opposite conclusion and held that all section 1983 actions “alleging illegal search and seizure of evidence upon which criminal charges are based do[] not accrue until the criminal charges have been dismissed or the conviction has been overturned.” (Harvey, supra, 210 F.3d at p. 1015; see also Shamaeizadeh v. Cunigan (6th Cir. 1999) 182 F.3d 391, 399, overruled on another ground in Wallace v. Kato, supra, 127 S.Ct. at p. 1098; Woods v. Candela (2d Cir. 1995) 47 F.3d 545, 546.) The Ninth Circuit Court of Appeals explained this rule “avoid[s] the potential for inconsistent determinations on the legality of a search and seizure in the civil and criminal cases and . . . therefore fulfill[s] the Heck Court’s objectives of preserving consistency and finality, and preventing ‘a collateral attack on [a] conviction through the vehicle of a civil suit.’ [Citation.]” (Harvey, supra, 210 F.3d at p. 1015.)
In Harvey v. Waldron, government officers seized 25 antique gaming devices from the plaintiff’s shop and charged him with illegal possession of gaming devices, in violation of a Montana state law. (Harvey, supra, 210 F.3d at p. 1010.) For purposes of determining when the plaintiff’s section 1983 claim accrued, the court stressed that “the evidence seized in the allegedly unlawful search—gaming devices—was an essential element of the crime of which Harvey was charged—illegal possession of gaming devices.” (Harvey, supra, 210 F.3d at pp. 1015-1016.) Just as in Harvey, evidence of drug paraphernalia seized by the police in their search of Phillips’s hotel room was essential to prove he committed the crime of illegal possession of paraphernalia. A successful outcome in this section 1983 action challenging the legality of the search and seizure would necessarily implicate the validity of Phillips’s conviction for possession of the evidence seized; therefore, the action is not cognizable under Heck. (Harvey, supra, 210 F.3d at pp. 1015-1016; see also Whitaker v. Garcetti (9th Cir. 2007) 486 F.3d 572, 583-584 [holding Heck and Harvey barred section 1983 action complaining of illegal wiretaps because plaintiffs’ convictions were based on evidence seized as a result of the challenged wiretaps].)
Moreover, even assuming it could fit within the hypothetical exception set forth in footnote seven of the Heck opinion, Phillips’s section 1983 claim fails because he has not alleged any “actual, compensable injury” arising from an illegal search. (Heck, supra, 512 U.S. at p. 487, fn. 7; see also Trimble v. City of Santa Rosa (9th Cir. 1995) 49 F.3d 583, 585 [prisoner’s section 1983 claim based on Fourth Amendment failed because he alleged no injury “apart from that resulting from his conviction and sentence”].) The complaint alleges Phillips suffered “embarrassment, mental anguish and emotional distress,” and also lost customers and income, but it states that these injuries were caused by the fact that Phillips was arrested and prosecuted for fraud and drug possession. The complaint identifies no damages incurred as a result of the search itself.
Finally, relying on the concurring opinion of Justice Souter in Spencer v. Kemna (1998) 523 U.S. 1, 18-21, Phillips asserts the Heck doctrine may not apply to section 1983 claims by a person who is no longer in custody. In Spencer, Justice Souter reiterated his view, previously expressed in a concurrence to Heck (Heck, supra, 512 U.S. at pp. 491-503), that “a former prisoner, no longer ‘in custody,’ may bring a [section] 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy.” (Spencer v. Kemna, supra, 523 U.S. at p. 21 (conc. opn. of Souter, J.).) Although Justice Souter’s view was joined by four members of the court, the high court itself has not announced this limitation to Heck, and one of the justices who joined Justice Souter’s concurrence (Justice O’Connor) is no longer on the court. “Thus, at present, under Supreme Court precedent, it is an open question as to whether the Heck rule is applicable when a person is no longer in custody and thus has no habeas remedy.” (Cole v. Doe 1 Thru 2 Officers of the City of Emeryville Police Dept. (N.D.Cal. 2005) 387 F.Supp.2d 1084, 1092.) The question is academic for purposes of Phillips’s claim, however, because there is nothing in the complaint or the record before us to suggest he is “no longer in custody.” After Phillips admitted a violation of probation on November 4, 2005, the court reinstated probation. According to settled California law, a probationer is in constructive custody and can seek relief from his conviction through a writ of habeas corpus. (In re Osslo (1958) 51 Cal.2d 371, 376; In re Wessley W. (1981) 125 Cal.App.3d 240, 246; see also People v. Cisneros (1986) 179 Cal.App.3d 117, 121 [“the courts have likened probation to constructive custody in situations other than those in which the prisoner urges it for the purpose of proceeding by way of writ of habeas corpus”].) Because Phillips did not obtain relief from his admitted probation violation through a writ of habeas corpus, on direct appeal, or otherwise, his section 1983 claim is barred. (Heck, supra, 512 U.S. at pp. 486-487.)
DISPOSITION
The judgment is affirmed. Phillips shall bear costs on appeal.
We concur: Pollak, J., Siggins, J.