Trulock v. Freeh

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. OPINION LEGG, District Judge: This case requires us to determine whether the Appellants’ complaint, 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 interrogation and search of a townhouse and a computer, were properly dismissed, 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 Truloek’s home and computer in retaliation for a magazine article that Tru-lock wrote, criticizing 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 proceedings. 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 Counter intelligence. Trulock alleges that he uncovered evidence that Chinese spies had systematically penetrated U.S. weapons laboratories, most significantly the Los Alamos Nuclear Laboratory. 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 ultimately forced out in 1999. In early 2000, Trulock wrote an account of his findings, which criticized 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, Tru-lock 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 — 398 — she reported to him. Conrad now reports to Trulock’s successor, Lawrence Sanchez. Trulock and Conrad 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 weapons, 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 Conrad 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 Tru-lock’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 Tru-lock 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 contend that Conrad tried to withdraw her consent or that Tru-lock 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 complaint 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. — 399 — 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 unflattering 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 constitutional violation either for unlawful search and seizure or for retaliation. 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 Tru-lock’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, 996 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). 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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This immunity “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, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Government 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 reasonable 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, 119 S.Ct. 1692, 143 L.Ed.2d 818 (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, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); see also County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d — 400 — 1043 (1998) (noting that if courts were to rule on qualified immunity without determining the constitutionality of the challenged conduct, “standards of official conduct would tend to remain uncertain, to the detriment 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, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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 been held unlawful. Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Rather, the unlawfulness 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, 102 S.Ct. 2727. 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, 100 S.Ct. 1870, 64 L.Ed.2d 497 (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, 100 S.Ct. 1870; see also Michigan v. Chestemut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). A person need not make an attempt to leave in order to be seized. Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. The threatening presence of several officers, the display 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. 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 Sanchez’ — 401 — 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 intimidating 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. 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 Amendment prohibition against warrantless searches. Schneckioth v. Bustamonte, 412 U.S. 218, 98 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Consent to search is valid only if it was knowing and voluntary and courts assess validity based on the “totality of the circumstances.” Mendenhall, 446 U.S. at 557, 100 S.Ct. 1870.4 Appellants rely primarily on Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Bumper, the police searched a house that the defen — 402 — dant 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 consent, which was given only after the official conducting the search asserted that he possessed a warrant. Id. at 550, 88 S.Ct. 1788. The Court observed that acquiescence to an assertion of lawful authority does not constitute 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, 88 S.Ct. 1788. 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 neither 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 superi- or liability. Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.1995). Instead, liability is personal, based upon each defendant’s own constitutional violations. While the complaint alleges that Sanchez was speaking at the request of the FBI, there is no allegation that any of these three individuals were personally complieit in Sanchez’ alleged misrepresentations. Accordingly, these Defendants also enjoy immunity. C. Trulock argues that the search of his password-protected files violated 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. 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 circumstances, 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, 84 S.Ct. 889, 11 L.Ed.2d 856 — 403 — (1964). Second, the third party’s consent must be voluntary. Bumper, 391 U.S. at 548, 88 S.Ct. 1788. 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 reasonable 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, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); accord Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (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 automatically 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 absence of a discrete expectation of privacy with respect to the particular object.” Id. at 541. Trulock’s password-protected files are analogous to the locked footlocker inside the bedroom. By using a password, Tru-lock affirmatively 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 privacy 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 outside 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 — 404 — did not have authority 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. Truloek, though conceding 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 mi gen-eris, the law of computers is fast evolving, and we are reluctant to recognize a retroactive right based on cases involving footlockers and other dissimilar objects. Thus, a reasonable officer in the Defendants’ position would not have known that Conrad’s consent did not authorize them to search Trulock’s files; the Defendants are, therefore, entitled to qualified immunity.6 D. In his final claim, Truloek 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, 84 S.Ct. 710, 11 L.Ed.2d 686 (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. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (alterations in original) (citation omitted); ACLU v. Wicomico County, Md., 999 F.2d 780, 785 (4th Cir.1993). 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 constitutionally 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, Truloek alleges that the Defendants retaliated against him for publishing the critical article. The Defendants argue that dismissal was justified because: (i) the complaint does not allege facts which, if proven, would show the causal relationship between Trulock’s speech and the Defendants’ actions; and (ii) the Defendants are entitled to qualified immunity. — 405 — 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, 78 S.Ct. 99, 2 L.Ed.2d 80 (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. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (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 heightened pleading-standard in qualified immunity cases, a district court has the discretion to ask a plaintiff to “put forward specific, non-conclusory factual allegations that establish improper motive.” Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). Whether Trulock’s claim can survive a motion for summary judgment remains to be seen, but we find that Trulock has alleged sufficient 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 article 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 commence an official investigation. The complaint alleges, however, that the FBI initiated the investigation without receiving a criminal referral 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 immunity. It is well established that a public official may not misuse his power to retaliate against an individual for the exercise of a valid constitutional right. Suarez v. McGraw, 202 F.3d 676, 685 (4th Cir.2000); accord Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.1998).10 This holds true — 406 — 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 retaliating against an individual for speaking critically of the government. 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. Footnotes [1] Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), an individual may bring a civil suit against a federal officer for damages stemming from a constitutional violation. [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 "seizure” in violation of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). [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. [4] In criminal cases, the burden is on the Government to prove the voluntariness of an individual's consent. Schneckloth, 412 U.S. at 222, 93 S.Ct. 2041. 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 involuntaiy consent. Compare Valance v. Wisel, 110 F.3d 1269, 1278-79 (7th Cir.1997) (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 posture of this case, however, we need not decide this issue. [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 Dillard) either ordered the search of the files or knew about the password-protection. [6] As previously stated, the complaint does not allege that the agents knew of Sanchez’s statement about a warrant. They had no reason, therefore, 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.” [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 Ranter, 238 F.3d 567, 577 (4th Cir.2001) (dismissing Fourteenth Amendment claim where complaint alleged "deliberate indifference” but included no facts to support allegation). [10] "[Gjovernment 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 — 406 — oath of office knows — or should know — that much.” Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir.1990).