FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWIN VERNON LOCKETT, 

Plaintiff-Appellant, No. 09-16609

v. D.C. No.

KEITH ERICSON; CITY OF MOUNT  2:07-cv-00301-

SHASTA POLICE DEPARTMENT; GEB-CMK

ROBERT D. GIBSON; CHRIS LYNCH;

OPINION DAVE MICKELSON,

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued November 5, 2010

Submitted August 25, 2011

San Francisco, California

Filed August 31, 2011

Before: John T. Noonan, Richard A. Paez, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Paez

16563
COUNSEL

Tania Beth Rose, San Francisco, California, for plaintiffappellant Edwin Lockett. 

William Ayres, Redding, California, for defendants-appellees

City of Mt. Shasta Police Department, Robert Gibson, and

Chris Lynch. 

Kamala Harris, Attorney General of California, Alberto Gonzalez, Supervising Deputy Attorney General, Sacramento,

California, for defendant-appellee Keith Ericson. 

OPINION

PAEZ, Circuit Judge: 

In 2005, officers entered Plaintiff-Appellant Edwin

Lockett’s (“Lockett”) home without a warrant and obtained

evidence that he had driven under the influence of alcohol

earlier in the night. The ensuing state prosecution concluded

when Lockett pled nolo contendere to a violation of California Vehicle Code section 23103.5(a). Believing the officers

violated his Fourth Amendment rights when they entered his

home in 2005, Lockett filed a federal complaint against the

officers and the Mount Shasta Police Department pursuant to

42 U.S.C. § 1983. The district court dismissed Lockett’s

§ 1983 complaint, concluding that the case was barred by

Heck v. Humphrey, 512 U.S. 477 (1994), and that the district

16566 LOCKETT v. ERICSON
court therefore lacked subject matter jurisdiction. Lockett

appealed the dismissal. We have jurisdiction pursuant to 28

U.S.C. § 1291 and, for the reasons set forth below, we reverse

the district court’s dismissal and remand for further proceedings consistent with this opinion. 

Factual and Procedural Background

On February 16, 2005, Lockett attempted to drive home

after his birthday party. Lockett did not quite make it: his car

slid off the road close to his house and he was unable to get

it back on the road. A woman saw Lockett trying to move his

car and she asked if he needed help. Lockett declined the

woman’s help and told her he was alright. Lockett then left

his car and walked the remaining short distance to his house.

The Yreka California Highway Patrol (“CHP”) received a

call reporting that a car was off the road; the caller said that

she had spoken to the driver, that she thought he was drunk,

and that he told her that he was not hurt and did not need

assistance. When the witness was interviewed again later, she

clarified that when she saw the car it was already off the side

of the road. CHP Officers Keith Ericson and S.J. Dickson, and

Mt. Shasta Police Officers Robert Gibson and Chris Lynch

went to the site where Lockett had left his car. These officers

found that the car was locked but the right front window was

down and there were several valuable items visible inside.

The Mt. Shasta Police Department Dispatch told the officers

that the car’s registered address was a residence approximately one block from where the car was left. Officers Ericson, Lynch, and Gibson (“Officers”) proceeded to the

registered address. 

At the residence, the Officers found the front door ajar by

approximately two inches, and a glass storm door that was

closed but unlocked. The Officers recall that they knocked on

the storm door for five minutes, identified themselves, and

called out for a response. No one inside the residence

LOCKETT v. ERICSON 16567
responded, but the Officers heard several coughs and saw

moving shadows inside. Officer Ericson called CHP Dispatch

and requested assistance from Sergeant Mickelson, who

arrived at the residence a short time later. 

After discussing the circumstances, Officers Ericson and

Mickelson decided to enter the residence: they continued to

announce themselves and requested a response from the occupant as they entered. Officer Mickelson found Lockett in bed

and began to question him. Lockett said that he did not

require medical attention and that he did not answer the door

because he was asleep. Officer Ericson said that Lockett could

not have been asleep for very long because he had just

crashed his car nearby; Lockett responded “I didn’t crash, I

just got stuck.” The Officers asked Lockett to remove the

blankets covering him, which revealed that he was fully

dressed and also revealed a strong smell of alcohol. The Officers further observed that Lockett’s eyes were red and watery.

Officer Ericson asked Lockett if he owned the car at issue and

he said yes. Officer Ericson also asked whether Lockett had

drunk any alcohol since returning home and he responded no.

Officer Ericson then requested that Lockett perform field

sobriety tests, which Lockett did not successfully complete.

At this time, Officer Ericson arrested Lockett for driving

while under the influence of alcohol and took him to the Mt.

Shasta Area CHP office where he underwent a breathalyser

test. The result of the breathalyser was .17/.17. 

The county prosecutor filed a misdemeanor complaint

against Lockett on March 9, 2005, alleging one count of driving under the influence of alcohol or drugs in violation of California Vehicle Code section 23152(a), and one count of

driving at .08 (or above) blood alcohol level in violation of

California Vehicle Code section 23152(b). In the ensuing

state court proceeding, Lockett filed a motion to suppress

under California Penal Code section 1538.5, arguing that the

evidence supporting the State’s case against him was seized

16568 LOCKETT v. ERICSON
without a warrant in violation of his Fourth Amendment

rights. 

The trial court denied the motion to suppress, finding that

the Officers were “reasonable in [their] suspicion of exigent

circumstances regarding the well being of [Lockett]” and

acted “properly in [their] role as a community caretaker in

entering [Lockett’s] residence to determine the need for assistance.” The court further found that “[o]nce inside the residence . . . the officer[s] made plain sight observations which

gave rise to probable cause to arrest [Lockett] for driving

under the influence.” 

After the trial court denied the motion to suppress as noted

above, Lockett entered a plea of nolo contendere to the lesser

violation of California Vehicle Code section 23103.5(a), commonly known as a “wet reckless.” Lockett waived his right to

appeal any section 1538.5 suppression issues, his sentence

was suspended, and he was placed on probation for three

years. The Superior Court entered the Order of Informal Probation against Lockett on June 23, 2008. 

Lockett filed this 42 U.S.C. § 1983 complaint on February

15, 2007. The court granted Lockett’s request to stay the proceedings pending the resolution of his related state prosecution. The court lifted the stay on August 26, 2008, in response

to Lockett’s report that the state prosecution against him had

concluded upon his nolo contendere plea. At a case management conference on October 22, 2008, the district court

directed the parties to brief the issue of whether Lockett’s

claim was barred under Heck v. Humphrey, 512 U.S. 477

(1994). 

On May 11, 2009, the assigned Magistrate Judge filed his

findings and recommendations. The Magistrate Judge concluded that the Heck bar applied to Lockett’s civil rights claim

and that the district court therefore lacked subject matter jurisdiction. The Magistrate Judge explained that Lockett

LOCKETT v. ERICSON 16569
argued in his motion to suppress that there were no

exigent circumstances justifying the warrantless

entry into his home. More to the point, [Lockett]

argues that there was no valid reason whatsoever to

enter the house. The facts outlined in [Lockett’s]

§ 1983 complaint do not indicate that the warrantless

search could even arguably have nonetheless been

proper due to some independent source or because of

inevitable discovery. Further, because there was no

trial and [Lockett] waived his right to appeal the

conviction, the issue of harmless error could never

arise.

The Magistrate Judge also rejected Lockett’s argument that

his claim fell within an exception to the Heck bar discussed

in footnote 7 of that opinion: “[b]ecause the search could not

have been otherwise rendered valid (due to, for example, an

independent source, inevitable discovery, or harmless error),

success on the § 1983 claim could have no other effect than

to render the search and subsequent conviction invalid.”

Accordingly, the Magistrate Judge recommended that

Lockett’s claim be dismissed. 

The district court adopted in full the Magistrate Judge’s

findings and recommendations, and it dismissed the case on

June 29, 2009. Lockett now appeals the district court’s dismissal. After oral argument, we vacated submission of this

case and ordered supplemental briefing from the parties. 

We review de novo a district court order dismissing a case

for lack of subject matter jurisdiction. Snow-Erlin v. United

States, 470 F.3d 804, 807 (9th Cir. 2006). 

Discussion

I. The Heck Bar 

[1] Lockett argues that the district court dismissed his

§ 1983 claim based upon an incorrect application of the

16570 LOCKETT v. ERICSON
Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477

(1994). We agree. In Heck, the Court held that: 

[I]n order 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 § 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, 28 U.S.C. § 2254.

512 U.S. at 486-87 (footnote omitted). The Court explained

that a “district court must consider 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.” Id. at 487. The

Court clarified, however, that if a “plaintiff’s action, even if

successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action

should be allowed to proceed, in the absence of some other

bar to the suit.” Id. (footnotes omitted). 

[2] In Ove v. Gwinn, 264 F.3d 817 (9th Cir. 2001), we

reviewed a district court’s application of the Supreme Court’s

Heck bar. We affirmed the district court’s dismissal of the

plaintiffs’ § 1983 claim. Id. at 820. We did so, however, only

because the plaintiffs had failed to allege a constitutional

violation—we held that the district court’s dismissal of the

claim pursuant to Heck was in error. Id. at 823. In Ove, the

§ 1983 claims arose “from blood tests taken after [the three]

plaintiffs’ arrests for suspicion of driving under the influence

of alcohol.” Id. at 820. In the subsequent criminal proceedings, the three Ove plaintiffs filed suppression motions under

California Penal Code section 1538.5. Id. One plaintiff’s

LOCKETT v. ERICSON 16571
motion was granted and the case was dismissed; the second

plaintiff’s motion was never ruled on and he pled nolo contendere to a violation of California Vehicle Code section

23152(a); the third plaintiff’s motion was denied and he pled

guilty to a violation of California Vehicle Code section

23152(a). Id. The convictions of the latter two plaintiffs were

not “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.” Heck, 512 U.S. at

486-87. Applying the principles the Supreme Court set forth

in Heck and its progeny, however, we held that Heck did not

bar the convicted plaintiffs’ § 1983 claims. We explained that

the plaintiffs’ 

lawsuit concerns the way in which their blood was

drawn. But blood evidence was not introduced

against them. No evidence was introduced against

them. They pleaded guilty or nolo contendere,

respectively. Their convictions derive from their

pleas, not from verdicts obtained with supposedly

illegal evidence. The validity of their convictions

does not in any way depend upon the legality of the

blood draws.

Ove, 264 F.3d at 823 (footnote omitted) (emphasis in original). 

[3] Our holding in Ove is dispositive in Lockett’s case.

Lockett pled nolo contendere after the superior court denied

his California Penal Code section 1538.5 suppression motion.

He was not tried, and no evidence was introduced against

him. Therefore, like the convicted plaintiffs in Ove, Lockett’s

conviction “derive[s] from [his] plea[ ], not from [a] verdict[ ]

obtained with supposedly illegal evidence.” Id. “The validity

of” Lockett’s conviction “does not in any way depend upon

the legality” of the search of his home. Id. We therefore hold

that Heck does not bar Lockett’s § 1983 claim. 

16572 LOCKETT v. ERICSON
II. Plea Agreement Waiver 

[4] Defendants argue that even if Heck does not bar

Lockett’s law suit, the case is barred because, in his plea

agreement, Lockett waived his right to appeal any California

Penal Code section 1538.5 suppression issues. The superior

court clerk’s minutes reflect Lockett’s appellate waiver in two

places. One handwritten note reads: “Def waives his right to

appeal any 1538.5 issues.” Another handwritten note reads:

“Def waives any appeal rights in regards to 1538.5 issues.”

[5] “[P]lea agreements are contractual in nature, and, as is

typical in contract cases, if the terms are clear and unambiguous, we will not look further.” United States v. Lightfoot, 626

F.3d 1092, 1094 (9th Cir. 2010) (footnote omitted). The terms

of Lockett’s plea agreement appear clear and unambiguous:

he “waive[d] any appeal rights in regards to 1538.5 issues.”

(emphasis added). The term “appeal rights” in a criminal plea

agreement does not encompass “civil litigation rights.” Moreover, “we steadfastly apply the rule that any lack of clarity in

a plea agreement should be construed against the government

as drafter.” United States v. Cope, 527 F.3d 944, 951 (9th Cir.

2008) (internal quotation marks omitted). Thus, even if the

terms of Lockett’s appellate waiver were ambiguous, we

would construe that ambiguity against the government and

conclude that the waiver in the plea agreement does not affect

Lockett’s ability to pursue this separate civil law suit. 

III. Collateral Estoppel 

[6] Defendants also argue that collateral estoppel requires

dismissal of Lockett’s case because the superior court already

rejected the same Fourth Amendment claim Lockett asserts

here. “State law governs the application of collateral estoppel

or issue preclusion to a state court judgment in a federal civil

rights action.” Ayers v. City of Richmond, 895 F.2d 1267,

1270 (9th Cir. 1990) (citing Allen v. McCurry, 449 U.S. 90,

96 (1980); Takahashi v. Bd. of Trustees, 783 F.2d 848, 850

LOCKETT v. ERICSON 16573
(9th Cir. 1986)). In Leader v. State, 226 Cal. Rptr. 207, 209

(Cal. Ct. App. 1986), the court explained that prior “convictions can be used for purposes of collateral estoppel in [a]

subsequent civil action.” Leader recognized the basic requirements for collateral estoppel: the doctrine prohibits relitigation of an issue decided at a previous trial if (1) “the issue

necessarily decided at a previous trial is identical to the one

which is sought to be relitigated; if (2) the previous trial

resulted in a final judgment on the merits; and if (3) the party

against whom collateral estoppel is asserted was a party or in

privity with a party at the prior trial.” Id. (internal quotation

marks omitted). 

[7] In addition to these basic principles, Leader explained

that California law contains an important nuance with respect

to using misdemeanor convictions for collateral estoppel in

subsequent civil trials. “When the crime is of the nature of a

traffic offense, the accused may plead guilty merely because

the defense is more trouble than the resulting penalty, and

thus such a conviction would not allow for application of the

doctrine.” Id. at 212. Indeed, the California Vehicle Code

compels this result. Section 40834, titled “Effect of conviction,” states that “[a] judgment of conviction for any violation

of this code . . . shall not be res judicata or constitute a collateral estoppel of any issue determined therein in any subsequent civil action.” Cal. Veh. Code § 40834; see also Leader,

226 Cal. Rptr. at 212 n.2. 

[8] Here, Lockett pled nolo contendere to a violation of

California Vehicle Code section 23103.5(a). As a result, the

plain language of section 40834 disallows “any issue determined” in Lockett’s wet reckless conviction to “constitute a

collateral estoppel” in this “subsequent civil action.” Cal.

Veh. Code § 40834 (emphasis added). Defendants argue that

section 40834 does not apply in this case. They contend that

“the statute has no effect here because the issue preclusion

flows not from the judgment of conviction per se but rather

from the earlier suppression ruling . . . and/or the waiver of

16574 LOCKETT v. ERICSON
the right to appeal.” Defendants rely on the beginning of section 40834—“[a] judgment of conviction”—and wholly

ignore the end of the statute—“any issue determined therein.”

We are not persuaded by Defendants’ truncated reading of the

statute. The all-inclusive “any issue determined therein”

clause plainly applies to the superior court’s suppression ruling in the criminal proceeding against Lockett. Thus, we conclude that there is no collateral estoppel bar to Lockett’s

Fourth Amendment claim in this civil action. 

Conclusion

For the foregoing reasons, we hold that neither the Heck

bar, nor Lockett’s Cal. Penal Code section 1538.5 appellate

waiver, nor collateral estoppel operates to bar Lockett’s

§ 1983 Fourth Amendment claim. 

REVERSED; REMANDED. 

LOCKETT v. ERICSON 16575