# Robert Pachaly, Jr. v. City of Lynchburg R.D. Viar William G. Petty, and Commonwealth of Virginia > Court of Appeals for the Fourth Circuit · March 2, 1990 · 897 F.2d 723 URL: https://www.frixlaw.com/law-library/cases/9480063 ## Case - **Full name:** Robert PACHALY, Jr., Plaintiff-Appellant, v. CITY OF LYNCHBURG; R.D. Viar; William G. Petty, Defendants-Appellees, and Commonwealth of Virginia, Defendant - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** March 2, 1990 - **Citations:** 897 F.2d 723; 1990 U.S. App. LEXIS 2965; 1990 WL 18038 - **Precedential status:** Published - **Opinion:** Concurring in part by Butzner - **Judges:** Russell, Chapman, Butzner - **Cited by:** 152 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9480063 ## How later opinions describe it (automated extraction) - finding that prosecutor was absolutely immune for participating in an allegedly illegal post-indictment search that the prosecutor asserted was necessary to obtain evidence to prosecute the indictment ## Opinion text BUTZNER, Senior Circuit Judge, dissenting and concurring: The warrant authorized a search of Pa-chaly’s business premises and seizure of his books, records, and receipts relevant to a dispute with the Virginia Department of Taxation over withholding taxes and a dispute with an individual about the sale of the business, a radio station. Investigator R.D. Viar, Commonwealth’s Attorney William G. Petty, and ten officers conducted the search. According to Pachaly’s affidavit, the searchers pulled drawers out of desks and dumped the contents on the floor, areas of carpeting were pulled up, insulation had been pulled from the ceiling and around the edges of the walls, ceiling tiles were missing, a leather briefcase was ripped open, some of the chairs had upholstery cut and stuffing removed, and the bathroom was ransacked. Pachaly also averred that the officers seized jewelry, equipment, personal correspondence, the station license, and his “horse records” including registrations. Viar claims that the jewelry was seized inadvertently and that the search was conducted in accordance with accepted police practices. The Commonwealth’s Attorney claims that he was present in his capacity as a prosecutor to make decisions concerning the need to seize certain documents. The tax case, which was the ostensible reason for the search, turned out to be a garden variety civil dispute. When it came to trial, the Virginia circuit court acquitted Pachaly at the conclusion of the Commonwealth’s evidence. The record does not disclose what became of the dispute about the sale of the station. Pachaly also avers that before the search he was harassed by the police who unsuccessfully tried to find some offense on which they could arrest him. In his affidavit opposing summary judgment, he claims that the search was conducted to find evidence about other crimes, the Tylenol murders. He states that in Connecticut where he has other business interests, he has had difficulty with a man named Cunningham who charges that Pachaly is the Tylenol murderer. Pachaly has sued Cunningham for libel and slander, and Cunningham has defended on the ground of truth. This suit apparently is pending. Pachaly alleges that Viar has admitted conferring with Cunningham. The Fourth Amendment provides in part: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... Unless shielded by qualified immunity, officers who conduct unreasonable searches and seizures subject themselves to liability for the harm they cause to persons whose rights they have violated. See Anderson v. Creighton, 483 U.S. 635, 638-41 , 107 S.Ct. 3034, 3038-40 , 97 L.Ed.2d 523 (1987); Galluccio v. Holmes, 724 F.2d 301, 304 (2d Cir.1983). Whether a police officer is protected by qualified immunity “generally turns on the ‘objective legal reasonableness’ of the action” the officer has taken. Anderson, 483 U.S. at 639 , 107 S.Ct. at 3039 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982)). Anderson explains that to deny the police qualified immunity, the evidence must show that “in the light of pre-existing law the unlawfulness must be apparent.” 483 U.S. at 640 , 107 S.Ct. at 3039 . It is beyond dispute that a reasonable police officer should know that pre-existing constitutional law dictates that a search and seizure should not exceed the scope of the warrant. *729 The Fourth Amendment proscribes such unreasonable searches. I am unable to accept Viar’s argument that as a matter of law his actions did not exceed the scope of the warrant. From the description of the search painted by Pachaly and the reasonable inferences that may be drawn from this description, a jury weighing the conflicting evidence might find that pulling insulation from walls and ceiling, cutting upholstery on chairs and removing the stuffing, ripping open a briefcase, dumping desk drawers, removing personal correspondence, records, and other personal property exceeded the authority conferred by the warrant. The Commonwealth’s Attorney’s plea of absolute immunity presents a more difficult case. If in fact he was engaged in a postindictment search for records pertaining to the tax prosecution, he is entitled to absolute immunity. Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976). But if he had departed from his role as a prosecutor and was engaged in the investigation of other crimes for which no indictments had been returned, he was not entitled to absolute immunity. Mitchell v. Forsyth, 472 U.S. 511, 520-24 , 105 S.Ct. 2806, 2812-14 , 86 L.Ed.2d 411 (1985); Joseph v. Patterson, 795 F.2d 549, 553-59 (6th Cir.1986). Again, a jury could reasonably find from conflicting evidence and inferences reasonably drawn from the evidence that the search far exceeded the scope of the warrant and sought evidence of crimes other than those charged in the pending indictments. I dissent from the court’s affirmance of the summary judgment granted in favor of Viar and the Commonwealth’s Attorney. I concur in affirming summary judgment for the city of Lynchburg. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480063. Public record. Not legal advice.