                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


STANLEY M. BALLENGER,                 
               Plaintiff-Appellant,
                v.
JOHN DALE OWENS, Lance Corporal                  No. 02-7394
and South Carolina State Trooper;
STATE OF SOUTH CAROLINA,
             Defendants-Appellees.
                                      
           Appeal from the United States District Court
         for the District of South Carolina, at Greenville.
                 David C. Norton, District Judge.
                       (CA-02-2002-6-18AK)

                      Argued: October 31, 2003

                     Decided: December 17, 2003

 Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.



Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Williams and Judge Duncan joined.


                            COUNSEL

ARGUED: D. Thomas Wilson, Student Counsel, Community Legal
Practice Center, WASHINGTON AND LEE UNIVERSITY
SCHOOL OF LAW, Lexington, Virginia, for Appellant. Andrew
Frederick Lindemann, DAVIDSON, MORRISON & LINDEMANN,
P.A., Columbia, South Carolina, for Appellees. ON BRIEF: C. Eliza-
2                        BALLENGER v. OWENS
beth Belmont, Community Legal Practice Center, WASHINGTON
AND LEE UNIVERSITY SCHOOL OF LAW, Lexington, Virginia,
for Appellant. Frank L. Valenta, Jr., SOUTH CAROLINA DEPART-
MENT OF PUBLIC SAFETY, Blythewood, South Carolina, for
Appellees.


                              OPINION

NIEMEYER, Circuit Judge:

   Stanley Ballenger commenced this action against the State of South
Carolina and South Carolina State Trooper John Owens under 42
U.S.C. § 1983, alleging an unreasonable search and seizure and
demanding $1.5 million in damages. In particular, Ballenger alleged
that Trooper Owens illegally and unconstitutionally stopped him,
searched his automobile, and seized the automobile and property
found in the automobile, including cocaine, marijuana, and a 9mm
handgun. The cocaine seized led to Ballenger’s conviction in State
court for drug trafficking and a 12-year sentence of imprisonment.

   The district court dismissed this case without prejudice and without
issuing process, under 28 U.S.C. § 1915A, concluding that Bal-
lenger’s action against South Carolina and Owens in his official
capacity was barred by the Eleventh Amendment and that his action
against Owens in his individual capacity was barred by the holding
of Heck v. Humphrey, 512 U.S. 477 (1994), because his criminal con-
viction for drug trafficking has not been set aside and a judgment in
this action would necessarily imply the invalidity of that conviction.

    For the reasons that follow, we affirm.

                                   I

   While Stanley Ballenger was driving a 1989 Lincoln sedan in Oco-
nee County, South Carolina, State Trooper John Owens stopped him
for following too closely behind another automobile. During the stop,
Trooper Owens detected the odor of marijuana from Ballenger’s auto-
mobile and then proceeded to search it, ultimately uncovering a
                         BALLENGER v. OWENS                            3
loaded 9mm handgun, four plastic bags containing a "white com-
pressed powder substance" and "green plant material," and a cigar
stuffed with "green plant material." Trooper Owens placed Ballenger
under arrest and seized his car as well as the contents under South
Carolina Code § 16-23-405 (authorizing the confiscation of illegal
weapons), § 44-53-520(a) (describing property subject to forfeiture),
and § 44-53-520(b) (authorizing seizure, without process, of property
subject to forfeiture). Following trial in the Court of General Sessions
for Oconee County, Ballenger was found guilty of cocaine trafficking
and sentenced to 12 years’ imprisonment, commencing in November
2001. Ballenger filed a motion for post-conviction relief in State
court, which he states is still pending.

   While serving his sentence, Ballenger, proceeding pro se, com-
menced this action under 42 U.S.C. § 1983, alleging that South Caro-
lina and Trooper Owens, in his official and individual capacities,
deprived Ballenger of his Fourth, Fifth, and Fourteenth Amendment
rights by stopping him and seizing his property. In his complaint, Bal-
lenger alleged that Trooper Owens stopped him "for following too
closely pursuant to [South Carolina] Code of [L]aws 56-5-1930"
"without having ‘probable cause.’" He alleged that the stop was
unlawful because a following-too-closely violation "cannot be deter-
mined by any preset ‘mathematical formula,’ but requires as a factor
a condition of an accident . . . which never occurred." Ballenger
alleged that Trooper Owens "stated he smelled marijuana . . . [and]
began to search." When Ballenger stated, "You have no reason [to
search]," Trooper Owens "explained to him the probable cause was
when he smelled the odor of marijuana." Ballenger alleged that "pur-
suant to the ‘Doctrine of the Poisonous Tree,’" the search that was
conducted pursuant to an illegal stop constituted an "illegal search."
Ballenger finally alleged that as a result of Trooper Owens’ "know-
ingly[,] with deliberate indifference[,] and under the color of [State]
law[,] illegally searching and seizing the plaintiff’s vehicle[,] [i]nter
alia," Ballenger was damaged in an amount in excess of $1.5 million.

   The district court, adopting the report and recommendation of the
magistrate judge, dismissed Ballenger’s complaint under 28 U.S.C.
§ 1915A without the issuance of process. The court concluded that
South Carolina, including Trooper Owens in his official capacity, was
immune from suit under the Eleventh Amendment and that the suit
4                           BALLENGER v. OWENS
against Trooper Owens in his individual capacity was barred by the
holding of Heck v. Humphrey, 512 U.S. 477 (1994). After the magis-
trate judge quoted at some length from Heck, he concluded, "Until the
plaintiff’s conviction is set aside, any civil rights action based on the
conviction and related matters will be barred because of the holding
in Heck v. Humphrey."

    This appeal followed.

                                    II

   With respect to the claims against South Carolina and Trooper
Owens in his official capacity, Ballenger does not advance any seri-
ous argument to challenge dismissal, and understandably so. Under
the Eleventh Amendment, "a State cannot be sued directly in its own
name regardless of the relief sought," absent consent or permissible
congressional abrogation. Kentucky v. Graham, 473 U.S. 159, 167
n.14 (1985); see also U.S. Const. amend. XI; Kimel v. Florida Bd. of
Regents, 528 U.S. 62, 73 (2000); Seminole Tribe of Florida v. Flor-
ida, 517 U.S. 44, 54 (1996). And for purposes of the Eleventh
Amendment, a state official acting in his official capacity is protected
from a damages action by the same immunity. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03 (1984); Edelman v.
Jordan, 415 U.S. 651, 666-69 (1974); cf. Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 70-71 (1989) (state official not a "person"
suable under 42 U.S.C. § 1983).

                                   III

   Ballenger’s principal argument focuses on the district court’s appli-
cation of Heck v. Humphrey, 512 U.S. 477 (1994). While the district
court applied Heck to dismiss Ballenger’s § 1983 claim, which
alleged an illegal search and seizure, Ballenger contends that the Dis-
trict Court failed to conduct the analysis required by Heck: "Neither
the Magistrate’s Report and Recommendation nor the District Court’s
order consider whether Mr. Ballenger’s claim, if successful, would
invalidate Mr. Ballenger’s conviction. Because the district court failed
to make the required threshold determination, the dismissal of Mr.
Ballenger’s claim for relief under 42 U.S.C. § 1983 should be set
aside and the case should be remanded for further proceedings."
                         BALLENGER v. OWENS                           5
   There is little doubt that the reason given for dismissal of Bal-
lenger’s § 1983 claim is the holding of Heck. The magistrate judge’s
report and recommendation, which the district court approved in
adopting it, not only cited Heck, but quoted the critical language from
Heck: "When a state prisoner seeks damages in a § 1983 suit, the dis-
trict court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence."
Heck, 512 U.S. at 487. After quoting Heck and several other opinions
applying Heck, the magistrate judge concluded, "Until the plaintiff’s
conviction is set aside, any civil rights action based on the conviction
and related matters will be barred because of the holding in Heck v.
Humphrey." Ballenger contends that this ruling is too conclusory and
does not reveal the analysis required by Heck. He argues:

    Here, it appears that neither the Magistrate Judge nor the
    District Court made any inquiry into the threshold question
    of the impact Mr. Ballenger’s claim might have on his con-
    viction. Instead, the Magistrate Judge simply determined
    that Mr. Ballenger’s conviction had not been reversed,
    invalidated, or called into question by a writ of habeas cor-
    pus, and concluded that, as a consequence, his claim was not
    ripe.

   While the district court did not discuss the elements of Ballenger’s
complaint and demonstrate how a judgment based on that complaint
would necessarily imply an invalidity of his conviction, the court
clearly had to reach that conclusion by applying Heck to dismiss Bal-
lenger’s action. Ballenger has not demonstrated why the district
court’s conclusion, whether laid out in sufficient detail or not, was in
error. And from our analysis, we conclude that the district court did
not err.

   In Heck, the petitioner was convicted in a state court for man-
slaughter and, during the course of his incarceration, filed a pro se
§ 1983 suit against the police and prosecutors, alleging unlawful acts
leading to arrest and conviction and seeking monetary damages.
Heck, 512 U.S. at 478-79. Analyzing the appropriate relationship of
a habeas corpus proceeding and a § 1983 action to the underlying
conviction, the Supreme Court observed, "We think the hoary princi-
ple that civil tort actions are not appropriate vehicles for challenging
6                        BALLENGER v. OWENS
the validity of outstanding criminal judgments applies to § 1983 dam-
ages actions that necessarily require the plaintiff to prove the unlaw-
fulness of his conviction or confinement, just as it has always applied
to actions for malicious prosecution." Id. at 486. In furtherance of that
fundamental policy, the Court stated that in order for a § 1983 plain-
tiff to recover damages for an unconstitutional conviction or "other
harm caused by actions whose unlawfulness would render a convic-
tion . . . invalid," the plaintiff must prove that the conviction

    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. A claim for damages bearing that relationship to a
    conviction . . . that has not been so invalidated is not cogni-
    zable under § 1983.

Id. at 486-87. Indeed, the Court denied the very existence of such a
cause of action. Id. at 489.

   To implement its holding, the Supreme Court articulated the test
that before a district court can dismiss a § 1983 action based on its
relationship to a conviction, "the district court must consider whether
a judgment in favor of the plaintiff would necessarily imply the inva-
lidity 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 (emphasis
added). The logical necessity that the judgment in the § 1983 case
imply the invalidity of a criminal conviction is at the heart of the
Heck requirement for dismissal of the § 1983 action.

   This case thus turns on whether a judgment in this § 1983 claim in
favor of Ballenger would necessarily imply invalidity of Ballenger’s
cocaine trafficking conviction. Ballenger argues conclusorily that a
judgment in this case would not necessarily impugn his conviction,
relying on the hypothetical exception provided by the Supreme Court
in Heck. To explain the meaning of "necessarily," the Supreme Court
stated in footnote 7:

    For example, a suit for damages attributable to an allegedly
    unreasonable search may lie even if the challenged search
                          BALLENGER v. OWENS                             7
     produced evidence that was introduced in a state criminal
     trial resulting in the § 1983 plaintiff’s still-outstanding con-
     viction. Because of doctrines like independent source and
     inevitable discovery, and especially harmless error, such a
     § 1983 action, even if successful, would not necessarily
     imply that the plaintiff’s conviction was unlawful.

512 U.S. at 487 n.7 (citations omitted; emphasis in the original). But
this hypothesis presented in footnote 7 does not provide a blanket pro-
tection for all § 1983 damage suits alleging an unreasonable search.
When evidence derived from an illegal search would have to be sup-
pressed in a criminal case if the judgment in the § 1983 claim were
to be applied to the criminal case and the suppression would neces-
sarily invalidate the criminal conviction, the stated principle of Heck
would apply, and the § 1983 claim would have to be dismissed; there
would be no cause of action under § 1983. See id. at 489. It is only
when the suppression of the evidence required by logical application
of the § 1983 judgment would not necessarily invalidate the underly-
ing conviction that the § 1983 case can proceed.

   In this case, the suppression of the evidence seized pursuant to the
challenged search in this § 1983 case would necessarily imply inva-
lidity of the criminal conviction because the doctrines of independent
source, inevitable discovery, harmless error, and other similar doc-
trines would not save the criminal conviction. The cocaine seized was
uniquely available from the alleged illegal search, and if it were sup-
pressed as evidence, there would be no evidence to convict Ballenger
for drug trafficking.

   As Ballenger alleges in his complaint, he was subject to an automo-
bile stop for following too closely. Following the stop, the state
trooper smelled marijuana from Ballenger’s automobile, giving the
trooper probable cause to search the automobile. See United States v.
Sheetz, 293 F.3d 175, 184 (4th Cir. 2002). Ballenger does not chal-
lenge the adequacy of this probable cause; he challenges the traffic
stop and asserts that the search that followed was illegal as the fruit
of an illegal stop. If Ballenger succeeds in demonstrating in this
§ 1983 case that his traffic stop was illegal, the illegality of the search
would require the suppression of the evidence seized. Ballenger has
advanced no circumstances, nor conceived of any to our knowledge,
8                        BALLENGER v. OWENS
to suggest how the state could convict him of cocaine trafficking if
the automobile stop were to have been found illegal. In the particular
circumstances of this case, there could be no independent source for
the cocaine and no inevitable discovery of it. Moreover, if the evi-
dence obtained by the search were suppressed, there could be no
harmless error because there would be no evidence of illegal drug
trafficking. It was possession of the cocaine discovered in Ballenger’s
automobile that constituted the criminal offense, and were that evi-
dence to be suppressed by reason of the illegality of the search, the
conviction could not be salvaged.

   Because a judgment for Ballenger in this case would necessarily
imply invalidity of his conviction, the case at this stage amounts to
no more than an unexhausted habeas corpus claim that collaterally
attacks his conviction. See Harvey v. Horan, 278 F.3d 370, 377-78
(4th Cir. 2002). This is not a cognizable role for § 1983. See Heck,
512 U.S. at 489 ("We . . . deny the existence of [such] a cause of
action").

   For these reasons, we conclude that the district court properly
applied Heck v. Humphrey to dismiss this § 1983 action in the
absence of proof by Ballenger that his conviction 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 487. Because Ballenger’s post-conviction
proceedings are still pending, the district court appropriately dis-
missed Ballenger’s § 1983 suit without prejudice.

                                                          AFFIRMED
