Coleman Wayne Gray, Plaintiff-appellant, v. William A. Freeman; Lieutenant; Carl E. Lilly Sergeant;suffolk Police Department, Defendants-appellees, 838 F.2d 466 (4th Cir. 1988)

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US Court of Appeals for the Fourth Circuit - 838 F.2d 466 (4th Cir. 1988) Submitted: Nov. 30, 1987. Decided: Jan. 22, 1988

Coleman Wayne Gray, pro se.

Harvey Edison White, Jr., White, Johnson & Lawrence, for appellees.

Before DONALD RUSSELL, SPROUSE, and WILKINSON, Circuit Judges.

PER CURIAM:


Coleman Gray appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint. Gray's complaint asserts that police officers conducted a sham search and exceeded the scope of the search warrant in searching his home and seizing his property. Gray also contends that the information who allegedly supplied information crucial to obtaining the warrant did not exist.

The Virginia State Supreme Court has concluded that the search conducted pursuant to the warrant was not a sham and that items not listed in the warrant were properly seized under the plain view doctrine. Gray v. Commonwealth, 233 Va. 313, 326, 356 S.E.2d 157, 164-65 (1987), cert. denied, 56 U.S.L.W. 3248 (U.S. Oct. 5, 1987) (No. 86-7114). Thus, Gray is collaterally estopped from relitigating those claims see Haring v. Prosise, 462 U.S. 306, 314-15 (1983), and they were properly dismissed based on collateral estoppel. Gray failed to contest the existence of the informant or the validity of the warrant on appeal to the Virginia Supreme Court; thus, that claim has not properly been exhausted in state court and it is not ripe for review. See Hamlin v. Warren, 664 F.2d 29, 32 (4th Cir. 1981), cert. denied, 455 U.S. 911 (1982). That claim therefore should have been dismissed without prejudice.

Accordingly, we modify the judgment of the district court to reflect dismissal without prejudice of the claim relating to the validity of the warrant, and affirm the judgment as modified. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument.

AFFIRMED AS MODIFIED.