29 December 2001. Thanks to AF.
Source: Fourth Circuit Court of Appeals electronic files via
PACER.
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
================================================|
NOTRA TRULOCK, III; LINDA CONRAD,
Plaintiffs-Appellants,
v.
LOUIS J. FREEH, in his personal
capacity; NEIL GALLAGHER, in his No. 00-2260
personal capacity; STEVE DILLARD, in
his personal capacity; BRIAN HALPIN,
in his personal capacity; STEVEN
CARR, in his personal capacity; JANE
DOE, I, in her personal capacity,
Defendants-Appellees.
================================================|
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-00-1268-A)
Argued: May 7, 2001
Decided: December 28, 2001
Before MICHAEL and GREGORY, Circuit Judges, and
Benson Everett LEGG, United States District Judge
for the District of Maryland, sitting by designation.
__________________________________________________________________________________
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Legg wrote the opinion, in which Judge Gregory joined. Judge
Michael wrote an opinion concurring in part and dissenting in part.
__________________________________________________________________________________
COUNSEL
ARGUED: Larry E. Klayman, JUDICIAL WATCH, INC., Washing-
ton, D.C., for Appellants. Richard Alan Olderman, Appellate Staff,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Paul J. Orfanedes,
Brett M. Wood, John L. Martin, JUDICIAL WATCH, INC., Wash-
ington, D.C., for Appellants. Stuart E. Schiffer, Acting Assistant
Attorney General, Helen F. Fahey, United States Attorney, Barbara L.
Herwig, Appellate Staff, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
__________________________________________________________________________________
OPINION
LEGG, District Judge:
This case requires us to determine whether the Appellants' com-
plaint, which the district court dismissed under FRCP 12(b)(6),
alleges sufficient facts to proceed to discovery. We agree that their
Fourth Amendment claims (count one), alleging an illegal interroga-
tion and search of a townhouse and a computer, were properly dis-
missed, primarily on the basis of qualified immunity. We conclude,
however, that the complaint sufficiently pleads a claim under the First
Amendment that the Defendants searched Trulock's home and com-
puter in retaliation for a magazine article that Trulock wrote, criticiz-
ing the White House, the Federal Bureau of Investigation ("FBI") and
other departments of the federal government. Accordingly, we reverse
and remand the First Amendment claim (count two) for further pro-
ceedings.
I.
Notra Trulock served as the Director of the Office of Intelligence
of the U.S. Department of Energy ("DOE") from 1994 to 1998. From
1995 to 1998, Trulock also served as the DOE's Director of the
Office of Counterintelligence. Trulock alleges that he uncovered evi-
dence that Chinese spies had systematically penetrated U.S. weapons
laboratories, most significantly the Los Alamos Nuclear Laboratory.
2
Trulock contends that the White House, the FBI, and the Central
Intelligence Agency ("CIA") ignored his repeated warnings about the
espionage. Congress eventually learned of the security breach and in
1998 invited Trulock to testify, which he did on several occasions.
That same year, Trulock was demoted within the DOE; he was ulti-
mately forced out in 1999.
In early 2000, Trulock wrote an account of his findings, which crit-
icized the White House, the DOE, the FBI, and the CIA for turning
a blind eye to the security breach. Trulock claims that the manuscript
did not include any classified information. Nonetheless, in March of
2000, Trulock submitted the manuscript to the DOE for a security
review, but the DOE declined to examine it. Afterward, Trulock sent
the manuscript to the National Review, which published an excerpt in
an edition that was circulated in early July of 2000. Although neither
side placed the article in the record, the parties agree that it charged
the administration with incompetence.
Plaintiff Linda Conrad has been the Executive Assistant to the
Director of the Office of Intelligence at the DOE for more than six
years. During Trulock's tenure she reported to him. Conrad now
reports to Trulock's successor, Lawrence Sanchez. Trulock and Con-
rad live in a Falls Church, Virginia townhouse, which Conrad owns.
Conrad alleges that on the morning of July 14, 2000, when she
arrived at work, Sanchez took her aside to say that the FBI wanted
to question her about Trulock. Sanchez warned her that the agents had
a warrant to search the townhouse and would break down the front
door, in the presence of the media, if she refused to cooperate.
Although the Plaintiffs allege that Sanchez made this statement to
Conrad "on behalf of the FBI," the complaint does not recite a factual
basis for this assertion. Nor does the complaint allege that any of the
five individual Defendants either directed Sanchez to make the threat
or knew about it.
Later that day, around 4:00 p.m., FBI Special Agents Brian Halpin
and Steven Carr arrived at DOE headquarters and escorted Conrad to
a conference room. Although the complaint states that they were
armed, Conrad does not contend that the agents displayed their weap-
3
ons, raised their voices, or otherwise threatened her during the three
hour interview.
According to the complaint, Conrad was able to receive two
incoming telephone calls, one of which was from Trulock, but that the
agents "would not let [her] take either telephone call in private." (J.A.
at 9.) The complaint further alleges that the agents refused to allow
Conrad to make any outgoing calls. The complaint implies that Con-
rad was not at liberty to leave the conference room. When questioned
on this point during oral argument, however, Conrad's attorney could
not assert that she ever tried to leave the room (e.g., to place a call
in private) or that the agents told her that she was not free to terminate
the interview and leave.
The agents queried Conrad about Trulock's personal records and
computer files. Conrad responded that she shared a computer with
Trulock, but that each of them maintained separate, password-
protected files on the hard drive. Conrad and Trulock did not know
each other's passwords and could not, therefore, access each other's
private files, Conrad stated.
The agents questioned Conrad for about three hours. Towards the
end of the interview, the agents gave Conrad a form, which they
asked her to sign. The complaint alleges that the agents did not
explain the form to Conrad and that Conrad did not read it, learning
only afterwards that she had consented to a search of her house. The
complaint does not allege that the agents claimed to have a search
warrant, threatened to break down Conrad's door if she refused to
sign, or mentioned the media. Conrad does maintain, however, that
she was fearful, crying and shaking.
At the end of the questioning, the agents followed Conrad to her
townhouse, where Trulock was waiting. When Trulock asked to see
the search warrant, the agents responded that they had no warrant but
that Conrad had consented to the search. The complaint does not con-
tend that Conrad tried to withdraw her consent or that Trulock tried
to bar the search on the ground that his consent, as a resident of the
house, was also necessary.
The agents located the computer in the bedroom. Special Agent
Carr and an unidentified FBI computer specialist (named in the com-
4
plaint as Jane Doe I) searched the computer's files for about ninety
minutes. The complaint alleges that Agent Carr looked at Trulock's
password protected files. When the search was over, the specialist,
after giving Conrad a receipt, took the hard drive away.
Two weeks later, Conrad and Trulock filed the instant Bivens suit.1
Count one of the complaint, brought under the Fourth Amendment,
alleges that: (i) the Defendants violated Conrad's rights by seizing her
during the interview; (ii) the Defendants violated Conrad and
Trulock's rights by coercing Conrad's consent to search their home;
and (iii) that Conrad's consent, even if voluntary, was insufficient to
permit the search of Trulock's private computer files. In count two,
brought under the First Amendment, Trulock contends that the FBI
conducted the search and seizure in direct retaliation for the unflatter-
ing magazine article.
Prior to discovery, the Defendants moved under Fed. R. Civ. P
12(b)(6) to dismiss the complaint, arguing that it failed to state a con-
stitutional violation either for unlawful search and seizure or for retal-
iation. Each Defendant also argued that he was entitled to qualified
immunity on both counts. The district court granted Defendants'
motion to dismiss, holding that the Defendants, having violated no
clearly established law, were entitled to qualified immunity. With
respect to Trulock's retaliation claim, the district court concluded that
"other than the timing of the interrogation and search, the complaint
presents no indications that the actions by the defendants were other
than a good faith effort to determine whether classified information
was being unlawfully possessed." (J.A. at 43.)
Because the district court granted Defendants' motion to dismiss,
our review is de novo. Stuart Circle Hospital Corp. v. Aetna Health
Management, 995 F.2d 500 (4th Cir. 1993). Like the district court, we
must assume all facts plead by Appellants to be true. Mylan Labs, Inc.
v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
__________________________________________________________________________________
1 Under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), an individual may bring a civil suit
against a federal officer for damages stemming from a constitutional vio-
lation.
5
II.
Qualified immunity shields government officials from civil liability
"insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This immu-
nity "protects law enforcement officers from`bad guesses in gray
areas' and ensures that they are liable only `for transgressing bright
lines.'" Wilson v. Collins, 141 F.3d 111, 114 (4th Cir. 1998) (quoting
Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)). Immunity
applies to "all but the plainly incompetent or those who knowingly
violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Govern-
ment officials performing a discretionary function are immune from
liability for civil damages unless (i) the officers' conduct violates a
federal statutory or constitutional right; (ii) the right was clearly
established at the time of the conduct; and (iii) an objectively reason-
able officer would have understood that the conduct violated that
right. Milstead v. Kibler, 243 F.3d 157, 161 (4th Cir. 2001) (citing
Wilson v. Layne, 526 U.S. 603, 614-15 (1999)).
The first step in analyzing whether qualified immunity exists is to
determine whether the plaintiff has alleged a violation of a statutory
or constitutional right. Siegert v. Gilley, 500 U.S. 226, 231 (1991); see
also County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)
(noting that if courts were to rule on qualified immunity without
determining the constitutionality of the challenged conduct, "stan-
dards of official conduct would tend to remain uncertain, to the detri-
ment both of officials and individuals").
Next, the trial court must assess whether the right at issue was
clearly established at the time of the breach. The court should focus
upon "the right [not] at its most general or abstract level, but at the
level of its application to the specific conduct being challenged."
Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994) (internal quotations
omitted) (quoting Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir.
1992)); see also Anderson v. Creighton, 483 U.S. 635, 639-41 (1987)
("The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right").
This does not mean, however, that an official will be protected by
qualified immunity unless the very act in question has previously
6
been held unlawful. Anderson, 483 U.S. at 640. Rather, the unlawful-
ness must be apparent in light of pre-existing law. Id.
Only if the plaintiff has alleged a violation of a clearly established
right should the court next determine whether a reasonable person in
the official's position would have known that his actions violated that
right. DiMeglio v. Haines, 45 F.3d 790, 794 n.1 (4th Cir. 1995). When
the inquiry reaches this juncture, "the immunity defense ordinarily
should fail, since a reasonably competent public official should know
the law governing his conduct." Harlow, 457 U.S. at 818-19.
III.
A.
Conrad first alleges that the agents, in violation of her Fourth
Amendment rights, illegally seized her during their heavy-handed
interrogation. The district court concluded that Ms. Conrad was not
in custody during her interview. We agree.
A person is "seized" only when, by means of physical force or a
show of authority, his freedom of movement is restrained. United
States v. Mendenhall, 446 U.S. 544, 553 (1980).2 A seizure has
occurred if, in view of all the surrounding circumstances, a reasonable
person would have believed that he was not free to leave. Id. at 554;
see also Michigan v. Chesternut, 486 U.S. 567, 573 (1988). A person
need not make an attempt to leave in order to be seized. Mendenhall,
446 U.S. at 554. The threatening presence of several officers, the dis-
play of a weapon by an officer, some physical touching, or the use of
words or a tone of voice suggesting that compliance with the officer's
request might be compelled, can all translate into a seizure. Id.
__________________________________________________________________________________
2 The Fourth Amendment provides that "the right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . ." Not all interaction
between a police officer and an individual, however, results in a "sei-
zure" in violation of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1,
19 n.16 (1968).
7
Conrad argues that a seizure took place because the agents would
not allow her to call anyone during the interview, they would not
allow her to take two incoming phone calls in private, and they told
her not to tell anyone about the interview. Conrad also points to San-
chez' statement to her that the FBI had a search warrant for her home
and that "if she did not agree to cooperate, [the FBI] would break
down her front door to execute the warrant, [and] the media would be
present." (J.A. at 6.)3 According to Conrad, this statement made her
feel as though she was not free to leave.
These factors simply do not amount to a seizure. The interview
transpired at a familiar setting, Conrad's workplace. The agents wore
no uniforms and displayed no weapons. There are no allegations that
the agents used physical force, threatening language, or an intimidat-
ing tone. Concerning the phone calls, Conrad does not allege that she
attempted to leave the room (to place or take a call in private) and was
refused. Nor does she allege, either in the complaint or in her briefs,
that the agents told her that she was not free to leave the conference
room. Conrad apparently contends only that the agents would not
themselves leave the room to give her privacy to talk.
Moreover, Sanchez' statement, though heavy-handed, would not
make a reasonable person feel that she was restricted from leaving the
interview. The conversation between Conrad and Sanchez pertained
to the search of her home and not the ground rules for the interview.
In addition, Sanchez made the statement when Conrad first arrived at
work, whereas the FBI questioning of Conrad took place several
hours later at the end of the day. There is no allegation that Conrad
queried the agents about the warrant or the threat. Nor does Conrad
allege that the agents knew about Sanchez' statement. Accordingly,
we affirm the district court's decision that Conrad was not "seized"
during her interview.
__________________________________________________________________________________
3 The complaint alleges that Sanchez made the statement on behalf of
the FBI but does not state the basis for this knowledge. Nevertheless,
because we are operating under the motion to dismiss standard, we must
accept this allegation as true.
8
B.
Appellants next allege that the search of their computer and home
was illegal because (i) the agents had no warrant, and (ii) Conrad's
consent to search was involuntary. The Defendants concede that there
was no warrant, but contend that the search was valid because Conrad
signed a consent form.
Valid consent is a well-recognized exception to the Fourth Amend-
ment prohibition against warrantless searches. Schneckloth v. Busta-
monte, 412 U.S. 218 (1973). Consent to search is valid only if it was
knowing and voluntary and courts assess validity based on the "total-
ity of the circumstances." Mendenhall, 446 U.S. at 557.4
Appellants rely primarily on Bumper v. North Carolina, 391 U.S.
543 (1968). In Bumper, the police searched a house that the defendant
shared with his grandmother. When the police arrived, an officer told
the defendant's grandmother that they had a search warrant. She
responded, "go ahead," and opened the front door. The Supreme
Court held that the police could not rely on the grandmother's con-
sent, which was given only after the official conducting the search
asserted that he possessed a warrant. Id. at 550. The Court observed
that acquiescence to an assertion of lawful authority does not consti-
tute an understanding, intentional and voluntary waiver of rights
under the Fourth Amendment, concluding, "[t]he situation is instinct
with coercion . . . [w]here there is coercion, there cannot be consent."
Id. at 549-50.
__________________________________________________________________________________
4 In criminal cases, the burden is on the Government to prove the vol-
untariness of an individual's consent. Schneckloth, 412 U.S. at 222. The
circuit courts are not in agreement about which party bears the burden
of proof in a civil suit that alleges a constitutional violation based on
involuntary consent. Compare Valance v. Wisel, 110 F.3d 1269, 1278-79
(7th Cir. 1991) (burden on plaintiff to prove that consent is involuntary),
and Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994) (burden
on plaintiff), and Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2nd
Cir. 1991) (burden on plaintiff), and Crowder v. Sinyard, 884 F.2d 804,
824-26 (5th Cir. 1989) (burden on plaintiff), with Tarter v. Raybuck, 742
F.2d 977, 980-81 (6th Cir. 1984) (burden on defendant). Given the pos-
ture of this case, however, we need not decide this issue.
9
Conrad's consent is invalid under the rationale of Bumper.
Although the agents who conducted the search never claimed to have
a warrant, Sanchez told Conrad that the FBI had a search warrant,
Conrad believed that Sanchez was conveying this information on
behalf of the FBI, and the complaint alleges that Sanchez was indeed
acting at the FBI's behest.
Nevertheless, the district court was correct in holding that the
Defendants have qualified immunity. The Defendants fall into two
categories, the first of which includes Special Agents Halpin and
Carr, who secured the consent and conducted the search. There is nei-
ther an allegation nor any evidence that these agents directed Sanchez
to misrepresent that the FBI possessed a warrant or that the agents
even knew about Sanchez' statement. Conrad never mentioned the
statement to them. The agents gave Conrad an explicit waiver form,
which she signed. The agents truthfully told Trulock that they had no
warrant, but that they had secured Conrad's consent. Based upon
these facts, no reasonable officer would have believed that Conrad's
consent was involuntary. Accordingly, Agents Halpin and Carr enjoy
immunity.
The second group of defendants include former FBI Director Freeh
and two FBI supervisors, Gallagher and Dillard. In a Bivens suit, there
is no respondeat superior liability. Estate of Resenberg v. Crandell,
56 F.3d 35, 37 (8th Cir. 1995). Instead, liability is personal, based
upon each defendant's own constitutional violations. While the com-
plaint alleges that Sanchez was speaking at the request of the FBI,
there is no allegation that any of these three individuals were person-
ally complicit in Sanchez' alleged misrepresentations. Accordingly,
these Defendants also enjoy immunity.
C.
Trulock argues that the search of his password-protected files vio-
lated his Fourth Amendment rights. He asserts that the search was
improper because: (i) there was no warrant; (ii) neither he nor Conrad
consented voluntarily to the search; and (iii) even if Conrad's consent
were valid, she did not have the authority to consent to a search of
his password-protected files. As we have previously stated, Bumper
leads us to conclude that Conrad's consent to search was involuntary.
10
Even if her consent were voluntary, however, it would not authorize
a search of Trulock's private, password-protected files.
Consent to search in the absence of a warrant may, in some circum-
stances, be given by a person other than the target of the search.
United States v. Block, 590 F.2d 535, 539 (4th Cir. 1978). Two
criteria must be met in order for third party consent to be effective.
First, the third party must have authority to consent to the search.
Stoner v. California, 376 U.S. 483 (1964). Second, the third party's
consent must be voluntary. Bumper, 391 U.S. at 548.
Authority to consent originates not from a mere property interest,
but instead from "mutual use of the property by persons generally
having joint access or control for most purposes, so that it is reason-
able to recognize that any of the co-inhabitants has the right to permit
the inspection in his own right and that others have assumed the risk
that one of their number might permit the common area to be
searched." United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974);
accord Frazier v. Cupp, 394 U.S. 731, 740 (1969) (holding that joint
use of a duffel bag gave a third party authority to consent to the
search of the bag).
We conclude that, based on the facts in the complaint, Conrad
lacked authority to consent to the search of Trulock's files. Conrad
and Trulock both used a computer located in Conrad's bedroom and
each had joint access to the hard drive. Conrad and Trulock, however,
protected their personal files with passwords; Conrad did not have
access to Trulock's passwords. Although Conrad had authority to
consent to a general search of the computer, her authority did not
extend to Trulock's password-protected files. See Block, 590 F.2d at
541.
In United States v. Block, this Court held that the defendant's
mother had authority to consent to a search of his room, which was
located in the home they shared. The mother's authority did not
extend to a search of a locked footlocker located within the room,
however. We noted that authority to consent "cannot be thought auto-
matically to extend to the interiors of every discrete enclosed space
capable of search within the area . . . the rule has to be one of reason
that assesses the critical circumstances indicating the presence or
11
absence of a discrete expectation of privacy with respect to the partic-
ular object." Id. at 541.
Trulock's password-protected files are analogous to the locked
footlocker inside the bedroom. By using a password, Trulock affirma-
tively intended to exclude Conrad and others from his personal files.
Moreover, because he concealed his password from Conrad, it cannot
be said that Trulock assumed the risk that Conrad would permit others
to search his files. Thus, Trulock had a reasonable expectation of pri-
vacy in the password-protected computer files and Conrad's authority
to consent to the search did not extend to them. Trulock, therefore,
has alleged a violation of his Fourth Amendment rights.
Nevertheless, the Defendants are entitled to immunity because a
reasonable officer in their position would not have known that the
search would violate clearly established law.5 At the time of the
search, at least one published case, although from a district court out-
side this circuit, held that a third party may consent to the search of
a shared computer when the third party has complete access to the
computer. See United States v. Smith, 27 F. Supp. 2d 1111 (C.D. Ill.
1998). But see United States v. Barth, 26 F. Supp. 2d 929 (W.D. Tex.
1998) (holding that a computer repair technician did not have author-
ity to consent to a search of the defendant's computer).
Conversely, we are aware of no reported cases answering whether
an individual has a reasonable expectation of privacy in password-
protected files stored in a shared computer. Trulock, though conced-
ing the absence of computer specific caselaw, urges us to recognize
a clearly established right based upon Block and other similar cases.
We decline to do this. Although cases involving computers are not sui
generis, the law of computers is fast evolving, and we are reluctant
__________________________________________________________________________________
5 According to the allegations in the complaint, Agent Carr and the
unidentified computer specialist were the only Defendants directly
involved in the search and seizure of Trulock's password-protected files.
Although Agent Halpin was present at the townhouse, the complaint
does not allege that he participated in the search. Furthermore, there is
no allegation that the supervising Defendants (Freeh, Gallagher, and Dil-
lard) either ordered the search of the files or knew about the password-
protection.
12
to recognize a retroactive right based on cases involving footlockers
and other dissimilar objects. Thus, a reasonable officer in the Defen-
dants' position would not have known that Conrad's consent did not
authorize them to search Trulock's files; the Defendants are, there-
fore, entitled to qualified immunity.6
D.
In his final claim, Trulock alleges that the Defendants trammeled
his First Amendment right to free speech by retaliating for his
National Review article.7 The district court dismissed Trulock's claim,
holding that "other than the timing of the interrogation and search, the
complaint presents no indication that the actions by the Defendants
were other than a good faith effort to determine whether classified
information was being unlawfully possessed." (J.A. at 43.) We must
disagree.
The First Amendment guarantees an individual the right to speak
freely, including the right to criticize the government and government
officials.8 New York Times v. Sullivan, 376 U.S. 254, 273 (1964);
accord Barrett v. Harrington, 130 F.3d 246, 264 (6th Cir. 1997). To
protect that right, public officials are prohibited from retaliating
against individuals who criticize them. Suarez Corp. Indus. v.
McGraw, 202 F.3d 676, 685 (4th Cir. 2000). Fear of retaliation may
chill an individual's speech, and, therefore, permit the government to
"`produce a result which [it] could not command directly.'" Perry v.
Sinderman, 408 U.S. 593, 597 (1972) (alterations in original)(citation
omitted); ACLU v. Wicomico County, Md., 999 F.2d 780, 785 (4th
Cir. 1993).
__________________________________________________________________________________
6 As previously stated, the complaint does not allege that the agents
knew of Sanchez's statement about a warrant. They had no reason, there-
fore, to believe that Conrad's consent was anything but voluntary.
7 It should be noted that the article itself is not part of the record. We
know only that it was highly critical of the FBI and other departments
of the federal government.
8 The First Amendment provides that "Congress shall make no law . . .
abridging the freedom of speech."
13
To establish a First Amendment retaliation claim, a plaintiff must
prove three elements: (i) that his speech was protected; (ii) that the
defendant's alleged retaliatory action adversely affected his constitu-
tionally protected speech; and (iii) that a causal relationship existed
between his speech and the defendant's retaliatory action. Suarez, 202
F.3d at 685-86.
In count two of the complaint, Trulock alleges that the Defendants
retaliated against him for publishing the critical article. The Defen-
dants argue that dismissal was justified because: (i) the complaint
does not allege facts which, if proven, would show the causal rela-
tionship between Trulock's speech and the Defendants' actions; and
(ii) the Defendants are entitled to qualified immunity.
Ordinarily, a complaint should not be dismissed for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6) unless it
appears beyond all doubt that the plaintiff can prove no set of facts
in support of his claim that would entitle him to relief. See Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); Labram v. Havel, 43 F.3d 918,
920 (4th Cir. 1995). Under the motion to dismiss standard, factual
allegations, once plead, must be accepted as true. See Jenkins v. Mc-
Keithen, 395 U.S. 411, 421-22 (1969).
The liberal pleading requirements of Rule 8(a) demand only a
"short and plain" statement of the claim. A plaintiff often must offer
more detail, however, than the bald statement that he has a valid claim
of some type against the defendant. Migdal v. Rowe Price-Fleming
Int'l, 248 F.3d 321, 326 (4th Cir. 2001).9 Although there is no height-
ened pleading standard in qualified immunity cases, a district court
has the discretion to ask a plaintiff to "put forward specific, noncon-
clusory factual allegations that establish improper motive." Crawford-
El v. Britton, 523 U.S. 574, 598 (1998).
__________________________________________________________________________________
9 "The presence [ ] of a few conclusory legal terms does not insulate a
complaint from dismissal under Rule 12(b)(6) when the facts alleged in
the complaint" do not support the legal conclusion. Young v. City of
Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001) (dismissing Fourteenth
Amendment claim where complaint alleged "deliberate indifference" but
included no facts to support allegation).
14
Whether Trulock's claim can survive a motion for summary judg-
ment remains to be seen, but we find that Trulock has alleged suffi-
cient facts in support of his retaliation claim to withstand a motion to
dismiss and proceed to discovery. The complaint contains facts that
bolster Trulock's claim of improper motive. First, the timing of the
search raises an inference of retaliatory motive. Stever v. Independent
School District No. 625, 943 F.2d 845, 852 (8th Cir. 1991). The arti-
cle was published in early July 2000 and the search occurred on July
14, 2000. The article chastised the White House, the CIA, the DOE,
and the FBI, the very agency that executed the search. According to
the Plaintiffs, a criminal referral is necessary for the FBI to com-
mence an official investigation. The complaint alleges, however, that
the FBI initiated the investigation without receiving a criminal refer-
ral from the DOE. Sanchez told Conrad, on behalf of the FBI, that
there was a search warrant when there was none. Finally, two weeks
after the incident, Sanchez told Conrad that if she initiated a lawsuit,
Sanchez, to protect the "Bureau," would deny telling Conrad that the
FBI claimed to have a search warrant. All of these factors, when
viewed together and accepted as true, raise a reasonable inference that
the interrogation and search were retaliatory. We cannot conclude
beyond all doubt that Trulock can prove no set of facts in support of
his claim that would entitle him to relief.
Having found that Trulock alleged the violation of a constitutional
right, we must next address the Defendants' claim of qualified immu-
nity. It is well established that a public official may not misuse his
power to retaliate against an individual for the exercise of a valid con-
stitutional right. Suarez v. McGraw, 202 F.3d 676, 685 (4th Cir.
2000); accord Block v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998).10
This holds true even when the act of the public official, absent the
retaliatory motive, would otherwise have been proper. ACLU, 999
F.2d at 785. Thus, we hold that it was clearly established at the time
of the search that the First Amendment prohibits an officer from retal-
iating against an individual for speaking critically of the government.
__________________________________________________________________________________
10 "[G]overnment officials in general, and police officers in particular,
may not exercise their authority for personal motives, particularly in
response to real or perceived slights to their dignity. Surely anyone who
takes an oath of office knows -- or should know -- that much." Duran
v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990).
15
Finally, we turn to whether a reasonable officer would have known
that retaliatory conduct was impermissible. The Defendants make
only one contention on this issue. They argue that a reasonable officer
could have believed that the magazine article, because of its content,
did not enjoy First Amendment protection. The Defendants' effort to
support this argument is half-hearted at best. They have not placed the
article on the record. They have not stated why the contents would
lack First Amendment protection. They have made no effort to show
that a prudent officer of the FBI could reasonably have believed that
the article did not enjoy First Amendment protection. Simply put,
Defendants have done nothing more than offer their bald assertions
that they are entitled to qualified immunity. Accordingly, we remand
the case to the district court to proceed on the retaliation claim.
IV.
For the reasons stated herein, we vacate that portion of the district
court's order that dismissed Trulock's First Amendment retaliation
claim and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
MICHAEL, Circuit Judge, concurring in part and dissenting in part:
I dissent from part III.C. of the majority's opinion, but otherwise
concur. The owner of password-protected computer files has a clear
expectation of privacy in those files that is protected by the Fourth
Amendment. Another person who does not know the passwords has
no authority to consent to a search of these private files because he
lacks the "joint access or control" required by United States v.
Matlock, 415 U.S. 164, 171 n.7 (1974). The plaintiffs, Notra Trulock
and Linda Conrad, both used Conrad's computer, but each maintained
personal files that were protected by passwords. Conrad told the
defendant-FBI agents that she did not know either the passwords for
Trulock's files or the contents of those files. As a result, Conrad's
general consent to a search of her computer could not authorize the
FBI's warrantless search of Trulock's password-protected files. This
should have been abundantly clear to any reasonable law enforcement
officer operating in the year 2000. I therefore respectfully dissent
16
from the majority's decision to affirm the grant of qualified immunity
to the FBI officials on the search of Trulock's password-protected
computer files. On a separate point, I agree with the majority that the
officials are entitled to qualified immunity on their warrantless search
of Conrad's house, but I write independently to explain why I reach
that conclusion.
I.
The majority holds that Conrad lacked the authority to consent to
a search of Trulock's password-protected computer files. Ante at 11.
I agree. I also agree with the majority's conclusion, see id., that
Trulock's computer files are analogous to the locked footlocker in
United States v. Block, 590 F.2d 535, 540-42 (4th Cir. 1978) (holding
that a mother's consent to the search of her son's room did not extend
to his locked footlocker). I respectfully disagree, however, with the
majority's view that the defendants are entitled to qualified immunity
because there was no clearly established law saying that one co-user's
consent to search a computer does not extend to the password-
protected files of another co-user when the consenting co-user does
not know the other's passwords. I would reject the defendants' quali-
fied immunity defense because the unlawfulness of searching
Trulock's password-protected files was readily apparent in light of the
principles established in Matlock and reiterated in Block.
Qualified immunity shields a government official from civil liabil-
ity so long as his conduct "does not violate clearly established statu-
tory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding
whether a right is clearly established for qualified immunity purposes,
the question is not whether the general right (here, the right to be free
from unreasonable searches) is clearly established. Rather, the ques-
tion is whether the right is clear in relation to the specific conduct
being challenged. See Wiley v. Doory, 14 F.3d 993, 995 (4th Cir.
1994). In other words, "[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
This does not mean, however, that "the very action in question [must
have] previously been held unlawful." Id. Liability will attach if the
unlawfulness of the conduct would be "apparent" to a reasonable offi-
17
cer "in the light of pre-existing law." Wilson v. Layne, 526 U.S. 603,
615 (1999). For the class of "clearly established" rights "includes not
only already specifically adjudicated rights, but those manifestly
included within more general applications of the core constitutional
principle invoked." Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.
1992) (emphasis added).
The central question here is whether in the light of pre-existing law
it would have been apparent to a reasonable FBI agent that Conrad's
general consent to search the computer she shared with Trulock did
not authorize the search of Trulock's password-protected files stored
in that computer. In answering this question, we look to Supreme
Court cases, "`cases of controlling authority in [this] jurisdiction,'
[and] the `consensus of cases of persuasive authority' from other
jurisdictions" as sources of clearly established law. Amaechi v. West,
237 F.3d 356, 363 (4th Cir. 2001) (quoting Wilson, 526 U.S. at 617).
No court has decided a case involving third-party consent to the
search of password-protected computer files. Nevertheless, we have
clearly established law that is applicable: it comes from Matlock and
Block.
A warrantless search can sometimes be authorized by a third party
who is not the target of the search. Matlock established that third-
party consent is valid only when the third party and the target have
"common authority" over the area or item sought to be searched.
Matlock, 415 U.S. at 171. Common authority, the Supreme Court
explained, rests on "mutual use of the property by persons generally
having joint access or control for most purposes." Id. at 171 n.7.
When common authority exists, the target of a search has "assumed
the risk" that another person with authority over a shared area or item
might consent to a search. Id. The principle that valid third-party con-
sent requires common authority should be sufficient to defeat the
defendants' claims of qualified immunity in this case. Specifically, it
should have been obvious to law enforcement officials operating in
the year 2000 that common authority over password-protected com-
puter files requires knowledge of the passwords.1 Even so, the govern-
__________________________________________________________________________________
1 Knowledge of the passwords is necessary, but not sufficient, to estab-
lish common authority over password-protected files. The third party
must also have "joint access" to the files "for most purposes." Matlock,
415 U.S. at 171 n.7. If Conrad had known Trulock's passwords and had
enjoyed general access to his files, this would be a different case.
18
ment argues that because Conrad had common authority over the
computer she shared with Trulock, the defendant-FBI agents reason-
ably failed to understand that her general consent to search the com-
puter did not authorize the search of all files stored in the computer.
The government's argument fails because a reasonable officer who
understood our decision in Block would have known that the search
of Trulock's private files was unlawful.
In Block we applied Matlock in deciding whether a third party's
consent to the search of a general area over which she has common
authority validates the search of every item within that area. The
mother in Block had general access to the room in which her
defendant-son's footlocker was located, and she signed a written con-
sent form authorizing a "complete search" of her son's room. Block,
590 F.2d at 537 n.1. Nevertheless, we held that the mother's consent
did not authorize the search of her son's footlocker. We emphasized
that authority to consent to the search of a general area "cannot be
thought automatically to extend to the interiors of every discrete
enclosed space capable of search within the area." Id. at 541. An
enclosed space or distinct item requires independent consent for a
search when the circumstances indicate that the person targeted has
"a discrete expectation of privacy with respect to the particular [space
or item]." Id. at 541 n.8. Privacy expectations are signaled, for exam-
ple, when the space or item is secured or "is commonly used for pre-
serving privacy." Id. This means, in other words, that a third party's
common authority ends where the target's discrete expectation of pri-
vacy begins. In sum, Block announced the general principle that when
a third party and the target of a search have common authority over
a general area, the third party's consent to a search of the general area
does not authorize the search of a specific item within that area if the
circumstances indicate that the target has a discrete expectation of pri-
vacy with respect to that item. This principle dictates the result in this
case.
The majority readily agrees that "Trulock's password-protected
files are analogous to the locked footlocker inside the bedroom" in
Block and that Trulock has therefore "alleged a violation of his Fourth
Amendment rights." Ante at 12. That conclusion is unassailable
because the factual parallels between this case and Block are striking.
The mother in Block had common authority over her son's bedroom,
19
just as Conrad had common authority over the computer she shared
with Trulock. The mother gave consent to search the bedroom, just
as Conrad gave consent to search the computer. The mother told the
police that the footlocker belonged to her son, that he kept it locked,
and that she did not have the key. Block, 590 F.2d at 538. Conrad told
the FBI agents that she did not know what information Trulock kept
in his computer files and that she could not access those files because
she did not know the passwords. Just as the mother's consent to the
search of her son's bedroom did not extend to his locked footlocker
inside that room, Conrad's consent to the search of her computer did
not extend to Trulock's "locked" files inside that computer. Indeed,
the only notable difference between the two cases is that Block
involved a locked footlocker and this case involves password-
protected computer files. For the majority, however, the immunity
decision turns on this one difference. The majority gives qualified
immunity to the defendants because of its reluctance to "recognize a
retroactive right based on cases involving footlockers and other dis-
similar objects." Ante at 13. In essence, the majority is hesitant to hold
the FBI agents responsible for applying Block 's clearly established
legal principle in a different factual context. The agents, the majority
believes, could not be expected to understand that the expectations of
privacy signaled by a locked footlocker and a password-protected
computer file are essentially the same.
While it is true that knowing a legal principle and knowing whether
to apply it in a particular circumstance are two different things, see
Lappe v. Loeffelholz, 815 F.2d 1173, 1180 n.7 (8th Cir. 1987), quali-
fied immunity was never intended to relieve government officials
from the responsibility of applying familiar legal principles to new
situations. To say otherwise would ignore the Supreme Court's warn-
ing that liability under S 1983 (and Bivens) does not require "the very
action in question [to have] previously been held unlawful." Wilson,
526 U.S. at 615. Whatever the physical differences between locked
footlockers and password-protected computer files, the question here
must be whether a reasonable officer would believe that there is a
legal difference for Fourth Amendment purposes. In other words, is
there any reason why a reasonable FBI agent fully apprised of the
principles in Block would believe that he could lawfully search
Trulock's password-protected files on the basis of Conrad's general
consent to search the computer? If there is no such reason, the unlaw-
20
fulness of the agents' conduct in this case is "apparent," Wilson, 526
U.S. at 615, and qualified immunity does not apply. Cf. Lassiter v.
Alabama A&M University, 28 F.3d 1146, 1150 (11th Cir. 1994) (stat-
ing that qualified immunity is lost when pre-existing law "dictate[s]"
or "compel[s]" the conclusion that a defendant's conduct violates fed-
eral rights).
Any reasonable officer should have recognized that the privacy
expectations attaching to a password-protected computer file are
essentially the same as those attaching to a locked footlocker. A com-
puter file is a repository for information and images in electronic
form, just as a footlocker is a repository for more tangible items such
as papers and other personal effects. Once password protection
attaches to a computer file, that protection is the electronic equivalent
of the lock on a footlocker containing items that are intended to
remain private. The password is an electronic key. While the medium
for ensuring privacy is different, the result -- a clear signal that pri-
vacy is expected against all those who lack the key (or the password)
-- is the same. There is simply no reason why a reasonable officer
who understood that a locked footlocker signals a discrete expectation
of privacy would believe that a password-protected computer file
does not. The physical differences between the two repositories have
no legal significance.
This conclusion is not undercut by the majority's observation that
the law of computers is "fast evolving." Ante at 12. In fact, the case
law supports my point that the differences between computer files and
physical repositories of personal information and effects are legally
insignificant. Courts have not hesitated to apply established Fourth
Amendment principles to computers and computer files, often draw-
ing analogies between computers and physical storage units such as
file cabinets and closed containers. See, e.g., In re Grand Jury Sub-
poena Duces Tecum, 846 F. Supp. 11, 12-13 (S.D.N.Y. 1994) (analo-
gizing computer hard drives and floppy disks that contained
electronic documents to file cabinets that contained paper documents
in deciding that subpoena for computer-accessible data was unreason-
ably broad); United States v. Chan, 830 F.Supp. 531, 534-35 (N.D.
Cal. 1993) (holding that "[t]he expectation of privacy in an electronic
repository for personal data is . . . analogous to that in a personal
address book or other repository for such information . . . . [A]n indi-
21
vidual has the same expectation of privacy in a pager, computer or
other electronic data storage and retrieval device as a closed con-
tainer. . . .") (internal quotation and citation omitted); United States
v. David, 756 F.Supp. 1385, 1390 (D. Nev. 1991) (recognizing that
a computer memo book "is indistinguishable from any other closed
container, and is entitled to the same Fourth Amendment protection").
Our circuit has also drawn analogies between computer files and
physical repositories of personal information and effects, such as
lockers. See United States v. Simons, 206 F.3d 392, 398 (4th Cir.
2000) (citing American Postal Workers Union v. United States Postal
Serv., 871 F.2d 556, 560 (6th Cir. 1989), to compare employee lock-
ers subject to random inspection under employer policy with com-
puter files subject to "appropriate" inspection under employer policy
allowing monitoring of employee Internet use).2 Thus, neither case
__________________________________________________________________________________
2 These analogies have limitations, of course. For example, the Tenth
Circuit rejected an argument based on the file cabinet analogy in decid-
ing that a detective exceeded the scope of a search warrant when he
opened certain of the defendant's computer files. See United States v.
Carey, 172 F.3d 1268 (10th Cir. 1999). In Carey the government argued
that an officer with a warrant to search a file cabinet for files containing
certain information can open every drawer of the file cabinet, even when
the labels on the file drawers suggest that none of the files within that
drawer fall within the scope of the warrant. Opening every drawer, the
government insisted, is the only way to be sure that the labels on the file
drawer are accurate. The government then argued by analogy that an
officer executing a warrant to search files on a computer for specified
information can also open all of the computer's files, including those
files whose names suggest that they contain no information within the
scope of the warrant. See id. at 1274-75. The court held that the file cabi-
net analogy does not extend this far because in the case of a computer,
officers may use key word searches and similar techniques to identify
which files fall within the scope of a warrant without the need to open
all of the files in the computer. See id. at 1275-76; see also Raphael Win-
ick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.
L. & Tech. 75, 103-11 (1994) (discussing the limitations of the closed
container analogy and recommending that courts adopt a version of the
"intermingled documents" rule adopted in United States v. Tamura, 694
F.2d 591, 595-96 (9th Cir. 1982), to govern computer searches). The
Carey court's limitation on the file cabinet analogy makes sense because
the court relied on a feature of computer files unique to the electronic
22
law nor common sense suggests any reason for thinking that the prin-
ciples in Block do not dictate the result in this case.
While the majority bases its grant of qualified immunity primarily
on the factual differences between this case and Block, it also suggests
that there is no clearly established law governing the search of
Trulock's protected files because at least one district court opinion
from another circuit has upheld the search of a shared computer based
on third-party consent. Ante at 12 (citing United States v. Smith, 27
F. Supp.2d 1111 (C.D. Ill. 1998)). Smith, however, is consistent with
Block, and its reasoning actually supports the conclusion that Con-
rad's consent to search the computer did not encompass Trulock's
password-protected files.
In Smith the court upheld a search of the defendant's computer files
based on third-party consent, but the facts were significantly different
from those presented here. There, the defendant's housemate con-
sented to a search of the defendant's computer, which was located in
an alcove in the housemate's bedroom. The court found that the
housemate had the necessary joint control and access to the computer
and its surrounding area because the computer was accessible to all
members of the household, it had been used by the housemate's
daughter, and the defendant had tried to teach the housemate to use
it. Smith, 27 F.Supp.2d at 1115-16. Although there was some factual
dispute about whether the defendant had used passwords to protect
computer files containing images of child pornography, the court
found that these files were not password protected. Id. at 1116 ("[I]t
__________________________________________________________________________________
medium, namely, their amenability to key word searches and similar
techniques. The detective's failure to use these techniques to limit the
scope of his computer search made the search unreasonable. See Carey,
172 F.3d at 1276. Thus, the physical differences between computer files
and file cabinets made a legal difference in Carey, and the court properly
warned the uncritical acceptance of the file cabinet analogy could lead
courts to sanction indiscriminate searches of computer files. Neverthe-
less, no court to my knowledge has suggested that the differences
between computer files and other repositories for personal information
raise difficult problems in deciding whether a given repository signals a
"discrete expectation of privacy." Block, 590 F.2d at 541 n.8.
23
is important to note that none of the officers who searched the com-
puter found passwords on the computer. This belies Defendant's
claim of exclusive and possessory control and indicates that [the
housemate] could consent to the search of the home and computer and
that the consent extended to the computer area and the computer
itself."). At most, then, Smith stands for the proposition that a third
party with shared access to a computer may consent to the search of
all the files on the computer that are not protected by individualized
passwords. Indeed, the court's conclusion that a lack of password pro-
tection discredits claims of exclusive possession and control suggests
that the presence of such protection would establish exclusive posses-
sion and control, thereby placing the password-protected files outside
the scope of valid third-party consent. As the majority recognizes,
Smith held only that "a third party may consent to the search of a
shared computer when the third party has complete access to the com-
puter." Ante at 12. Certainly Conrad had general access to the com-
puter, and certainly a reasonable officer would have believed that
Conrad had the authority to consent to a search of all of the com-
monly accessible files on the computer. But access to a computer
need not -- and here it did not -- extend to each and every file on
that computer. A reasonable officer aware of the principles in Block
would not have thought otherwise.
I would hold, therefore, that the search of Trulock's password-
protected files violated clearly established law because the unconstitu-
tionality of the search was readily apparent in light of the core princi-
ples applied in Matlock and Block. This position is supported by the
government's own conclusions about how Fourth Amendment princi-
ples apply to computer technology. In a manual designed to educate
federal agents about the law governing searches and seizures of com-
puters, the Department of Justice (DOJ) explicitly acknowledges that
"it appears likely that encryption and password-protection would in
most cases indicate the absence of common authority to consent to a
search among co-users who do not know the password or possess the
encryption key." Searching and Seizing Computers and Obtaining
Electronic Evidence in Criminal Investigations, at p. 14 (2001), avail-
able at www.cybercrime.gov/searchmanual.pdf.3 It is especially strik-
__________________________________________________________________________________
3 On this point, the contrast with Wilson v. Layne is instructive. There,
the Supreme Court buttressed its finding of qualified immunity by stating
24
ing that the DOJ based its conclusion on an analysis of Block and
Smith, see id., the very authorities relied upon by the majority to
assert that there was no clearly established law indicating that Conrad
had no authority to consent to the search of Trulock's password-
protected files. In effect, the government now invites this court to find
that the law governing third-party consent to computer searches is
uncertain even though it has shown itself quite capable of correctly
resolving the question presented in this case. I would decline this invi-
tation.
Qualified immunity is intended "to protect those officers who rea-
sonably believe that their actions do not violate federal law," Doe v.
Broderick, 225 F.3d 440, 453 (4th Cir. 2000), but it should not func-
tion to give officers "one free violation" of constitutional rights every
time they are asked to apply a well-established principle to a new set
of facts, Wilson, 526 U.S. at 625 (Stevens, J., concurring in part and
dissenting in part). The defendants in this case should have known
that they had no right to search Trulock's password-protected com-
puter files, and thus they should not be given qualified immunity.
II.
In part III.B. of its opinion the majority concludes that although
Conrad did not voluntarily consent to the search of her house, the
defendants are entitled to qualified immunity from any liability for
that search. While I agree with the majority's conclusion, I write sep-
arately because my reasons for granting the defendants qualified
immunity on the house search may differ from the majority's.
Although Conrad signed a written consent form authorizing the
FBI to search her house, she alleges that this consent was involuntary
because it was prompted by her belief that the FBI already had a
search warrant and that the FBI would break down her front door and
__________________________________________________________________________________
that the police reasonably relied on a U.S. Marshals Service policy gov-
erning media ride-alongs which clearly contemplated that media mem-
bers might accompany police into private homes. See Wilson, 526 U.S.
at 617. In contrast, the agents' conduct here contravened the DOJ's own
understanding of the legal norms governing third-party consent to com-
puter searches.
25
search the house in the presence of the media and local police if she
refused to cooperate. Although the voluntariness of consent for Fourth
Amendment purposes is "a question of fact to be determined from the
totality of all the circumstances," Schneckloth v. Bustamonte, 412
U.S. 218, 227 (1973), one factor that nearly always invalidates con-
sent is an assertion by law enforcement officers that they have the
authority to search with or without consent. See, e.g., Bumper v.
North Carolina, 391 U.S. 543, 550 (1968) (holding that consent was
invalid when given after police officers claimed authority to search
home under a warrant); United States v. Lattimore, 87 F.3d 647, 652
(4th Cir. 1996) (en banc) (stating that police officer's assertion that
he would "`call a drug dog'" to search suspect's car if suspect refused
consent "would raise serious questions concerning the voluntariness
of his consent"); Orhorhaghe v. I.N.S., 38 F.3d 488, 500 (9th Cir.
1994) (stating that "[i]t is well established that there can be no effec-
tive consent to a search or seizure if that consent follows a law
enforcement officer's assertion of an independent right to engage in
such conduct."). Consent is also involuntary when officers threaten a
person with adverse consequences if she refuses to consent to a
search. See State v. Davis, 404 S.E.2d 100, 100-01 (Ga. 1991)
(affirming trial court's ruling that consent was involuntary when
police told defendant's mother they would break down the door if she
refused to cooperate); Reyes v. Edmunds, 472 F. Supp. 1218, 1227-28
(D. Minn. 1979) (holding that consent was involuntary when welfare
recipient was told that her benefits would be terminated if she refused
to consent to the search of her home). Here, Conrad alleges that the
FBI, acting through Lawrence Sanchez (Conrad's supervisor at the
Department of Energy), claimed to have authority to search her house
and threatened her with property damage and public humiliation if she
refused to cooperate. Under these circumstances, her consent was not
voluntary.
The government claims that there are two reasons why this case is
not controlled by Bumper, in which the Supreme Court held that con-
sent is involuntary when given after "the official conducting the
search has asserted that he possesses a warrant." Bumper, 391 U.S. at
548. First, it argues that this case is distinguishable from Bumper
because the complaint fails to allege that the FBI agents who con-
ducted the search claimed they had a warrant or knew that Sanchez
had told Conrad that they had a warrant. Second, the government
26
argues that because Sanchez is neither a defendant nor a law enforce-
ment official, what he allegedly said to Conrad does not bear on
whether the defendants violated her constitutional rights. Like the
majority, I refuse to read Bumper so narrowly. Bumper stands for the
proposition that consent cannot be voluntary when the government
has led the person consenting to "erroneous[ly] belie[ve] that [s]he
cannot protect [her] privacy by refusing to give consent." 3 Wayne R.
LaFave, Search and Seizure, S 8.2(c) at 652 (3rd ed. 1996). If, as the
complaint alleges, Sanchez was acting on behalf of the FBI, then the
government led Conrad to believe that her only choice was between
losing her privacy quietly and losing it in the glare of the media spot-
light. That the government conveyed this message through Sanchez
rather than through the FBI agents conducting the search does not
change the result under Bumper.
The majority and I may differ, however, in our reasons for con-
cluding that the defendants are entitled to qualified immunity on the
house search. Qualified immunity protects government officials who
make reasonable mistakes of fact as well as those who make reason-
able mistakes about what the law requires in a particular situation.
Karnes v. Skrutski, 62 F.3d 485, 498 (3rd Cir. 1995) (stating that
qualified immunity protects those who make "`mere mistakes in judg-
ment, whether the mistake is one of fact or one of law'" (quoting Butz
v. Economou, 438 U.S. 478, 507 (1978))). As my previous discussion
of the search of Trulock's computer files illustrates, qualified immu-
nity analysis usually turns on whether the illegality of the defendant's
conduct was apparent in the light of clearly established law. Here,
however, I believe the defendants are entitled to qualified immunity
only because it is undisputed that they did not know all of the relevant
facts. Because the complaint fails to allege either that the defendants
told Conrad that they had a warrant or that they knew Sanchez had
told Conrad that they had a warrant, we must assume that the defen-
dants were unaware of Conrad's belief that they would search her
house with or without her consent. Without any awareness of what
Sanchez had said to Conrad, the defendants could have reasonably
believed that Conrad's written consent was valid. The defendants are
therefore entitled to qualified immunity. On my analysis, then, the
crucial factor in explaining why the defendants should receive quali-
fied immunity is that they made a reasonable mistake of fact about
what Conrad believed. Because the defendants did not know what
27
Sanchez had told Conrad, they reasonably failed to recognize that
Conrad believed that she could no longer protect her privacy by refus-
ing to consent to the search of her house.
In explaining its qualified immunity holding, the majority also
emphasizes the defendants' lack of knowledge of the conversation
between Sanchez and Conrad. Thus, the majority and I may agree that
qualified immunity is justified only because the defendants made a
reasonable mistake of fact. I wish to be explicit on the point, however,
because I could not accept the proposition that the defendants in this
case made a reasonable mistake of law. Specifically, I would refuse
to grant the defendants qualified immunity if the complaint had
alleged that any of the defendants had personally directed Sanchez to
threaten Conrad or that the defendants knew that Sanchez had con-
veyed threats to Conrad at the behest of someone in the FBI. On those
facts, the defendants' only argument for qualified immunity would
have been that the invalidity of Conrad's consent was not readily
apparent in light of the factual distinctions between this case and
Bumper. For example, the government might have argued that this
case differs from Bumper because there the officers who claimed to
possess a warrant also conducted the search, whereas here Sanchez
claimed that the FBI had a warrant but the agents who conducted the
search did not make that claim. I would reject such arguments for rea-
sons similar to those given in part I above. Bumper clearly establishes
that there can be no valid consent when the government has led a per-
son to believe that her consent is irrelevant, and there is no reason
why a reasonable officer would think that the factual differences
between Bumper and this case are legally significant.
III.
In sum, I agree with the majority's disposition of this case, except
that I respectfully dissent from its decision to grant the defendants
qualified immunity on Trulock's claim that the warrantless search of
his password-protected computer files violated his Fourth Amend-
ment rights. I would therefore reverse the district court's order grant-
ing the defendants' motion to dismiss that claim.
28
http://nationalreview.com/comment/comment071700e.html
Excerpts from the NR article that led to the FBI seizure of the author's computer.
The administration had been very slow in responding to our warnings. The FBI's prosecution of the espionage case, formally underway since mid 1996, had been dilatory at best. Months went by with little or no FBI action; more than a year passed before the FBI even attempted to obtain technical coverage of the key suspect in the case. What the FBI did with the list of eleven other potential suspects provided to them by DOE in 1996 remains a mystery. We have since learned that the FBI missed numerous opportunities for breakthroughs in the case, largely through neglect and ineptitude ...
http://www.nationalreview.com/comment/comment071700d.html
Excerpts from the NR article that led to the FBI seizure of the author's computer.
The administration's response was to "shoot the messenger." They sought to undermine the credibility of our warnings of Chinese espionage — and in the process, they drowned out our warnings of long-standing security vulnerabilities and counterintelligence shortfalls.
As DOE's director of intelligence, I bore the brunt of many of these attacks; I was demoted in 1998 and forced out of the department in 1999. My successor told me that I had single-handedly "destroyed DOE," and that I was a pariah in the department. I soon read in the Washington Post and elsewhere that I was a "dangerous demagogue," a "great imposter," "obsessed," and even that I resembled Star Trek's Captain Kirk. (I never did figure out whether that was a compliment or a criticism.) Reporters, citing "anonymous" sources, accused me of unfairly singling out one man, Wen Ho Lee, as the culprit in the case. Racism and xenophobia were imagined in media accounts to explain the events of the past four years. This was pretty heavy stuff for someone who has spent most of his career trying to stay out of the public eye; but it has become routine treatment for whistleblowers in this administration. I was not alone; other DOE security officials were subjected to equal or worse treatment at the hands of the Clinton political appointees within the department...