Probable Cause as a Prerequisite for First Amendment Retaliatory Search Claims: Commentary on Joseph N. Stanley v. Christopher T. Bocock

I. Introduction

The Fourth Circuit’s published decision in Joseph N. Stanley v. Christopher T. Bocock, No. 24‑1970 (4th Cir. Dec. 2, 2025), squarely addresses whether the Supreme Court’s “no probable cause” requirement for First Amendment retaliatory arrest and prosecution claims extends to claims that law enforcement obtained or executed search warrants in retaliation for protected speech.

Chief Judge Diaz, writing for a unanimous panel, answers that question in the affirmative: a plaintiff who alleges that a search warrant was obtained in retaliation for his speech must plead (and ultimately prove) the absence of probable cause for the search, subject only to the narrow “objective evidence” exception recognized in Nieves v. Bartlett. Because Joseph Stanley failed to plausibly allege a lack of probable cause supporting the search warrants for his Facebook and Gmail accounts, and failed to bring himself within the exception, his First and Fourth Amendment claims under 42 U.S.C. § 1983 were dismissed. The court also affirmed the district court’s denial of leave to file a second amended complaint as futile.

This commentary examines the factual background, the court’s holdings, its reliance on Supreme Court and Fourth Circuit precedent, and the broader implications for First Amendment retaliation doctrine, Fourth Amendment search law, and digital investigations involving social media and email accounts.

II. Factual and Procedural Background

A. The underlying events

Joseph Stanley described himself as a “community advocate” in the Town of Rocky Mount, Virginia, seeking to improve local government and the Rocky Mount Police Department. In 2020, he posted to Facebook a seventeen-minute video taken from the Police Department’s internal office security system. The record does not reveal the content of the video, but it is undisputed that it came from the Department’s internal surveillance system and that only four employees—two no longer with the Department when the video was posted—had access to this internal footage.

The Rocky Mount Police Department requested assistance from the Virginia State Police. Special Agent Christopher Bocock was assigned to investigate how Stanley had obtained the video. Bocock concluded that Stanley’s Facebook account might contain evidence of the Virginia offense of computer trespass, specifically the unauthorized copying of computer data or programs with malicious intent or through intentionally deceptive means. See Va. Code Ann. § 18.2‑152.4(A)(6).

Bocock applied to a state magistrate for a warrant to search Stanley’s Facebook account. The supporting affidavit noted, among other things, that Stanley “made several posts to [F]acebook showing his disdain for the government and the Rocky Mount Police Department.” A magistrate found probable cause and issued the warrant. The Facebook search in turn led Bocock to Stanley’s Gmail account, which he believed might also contain evidence about how the internal security video had been obtained or transmitted. He sought and obtained a second warrant to search the Gmail account.

Stanley moved in state court to quash both warrants for lack of probable cause. The motions were denied, and the Supreme Court of Virginia refused his petition for appeal. Ultimately, the Commonwealth’s Attorney decided that there was “not sufficient evidence” to charge any person with computer trespass, principally because there was no evidence of the required “malice” or “intentionally deceptive means” by which the video was copied.

B. The § 1983 litigation

Stanley then filed a federal civil rights action under 42 U.S.C. § 1983 in the Western District of Virginia against Special Agent Bocock, in both his individual and official capacities. He alleged that Bocock violated his First Amendment rights by retaliating against him for criticizing local government, and his Fourth Amendment rights by conducting unconstitutional searches of his online accounts. He claimed that the searches “chill[ed] and interfered” with his speech.

Stanley amended his complaint once as of right. Bocock moved to dismiss. Before the district court ruled, Stanley sought leave to file a second amended complaint, adding detail to his underlying allegations and seeking to cure the perceived deficiencies raised in the motion to dismiss.

The district court:

Dismissed the individual‑capacity First and Fourth Amendment claims on Rule 12(b)(6) grounds, concluding that Stanley failed to plead the absence of probable cause; and
Denied leave to file the second amended complaint as futile, after assuming all its factual allegations to be true and finding that it still failed to state a claim.

Stanley did not appeal the dismissal of the official‑capacity claims (which were barred by the Eleventh Amendment). He did appeal the dismissal of his individual‑capacity First and Fourth Amendment claims and the denial of leave to amend.

III. Summary of the Opinion

A. Core holdings

The Fourth Circuit affirmed in all respects. The key holdings are:

First Amendment retaliatory search claims require pleading the absence of probable cause. Extending the logic of Hartman v. Moore (retaliatory prosecution) and Nieves v. Bartlett (retaliatory arrest), the court held that a plaintiff alleging a First Amendment retaliatory search must plead that the search was not supported by probable cause, unless he falls within the “objective evidence” exception recognized in Nieves.
The Nieves “objective evidence” exception did not apply. Even assuming the exception applies to retaliatory search claims, Stanley did not offer objective evidence that similarly situated individuals who engaged in the same conduct but without protected speech were not subjected to similar searches. A reference to his “disdain” for government in the warrant affidavit was not the kind of objective comparator evidence Nieves and Gonzalez v. Trevino contemplate.
Stanley did not plausibly plead the absence of probable cause. A conclusory assertion that there was no probable cause, combined with the prosecutor’s later decision not to charge anyone, was insufficient. The court emphasized the distinction between (1) probable cause to search for evidence of a crime and (2) probable cause to arrest or charge someone with that crime. It held that the facts—Stanley’s posting of internal security video, the limited access to that video, and its digital nature—easily supported probable cause to believe his Facebook and Gmail accounts would contain evidence of computer trespass.
Because probable cause existed, the Fourth Amendment search claim also failed. For a Fourth Amendment unreasonable‑search claim grounded in lack of probable cause, the same factual analysis doomed the claim.
Leave to amend was properly denied as futile. The district court considered the proposed second amended complaint and correctly concluded that, even taking its allegations as true, it failed to state a claim. Under prevailing Fourth Circuit standards, that made further amendment futile.

The court did not reach qualified immunity. Because Stanley failed to state either a First or Fourth Amendment claim, there was no need to address whether the right at issue was clearly established.

IV. Analysis

A. Precedents and authorities shaping the decision

1. First Amendment retaliation framework: Constantine

The court began by restating the standard for First Amendment retaliation claims from Constantine v. Rectors & Visitors of George Mason University, 411 F.3d 474 (4th Cir. 2005). Under Constantine, a plaintiff must plausibly allege:

Engagement in protected First Amendment activity;
Adverse government action that would deter a person of ordinary firmness from continuing to engage in that activity; and
A causal relationship between the protected activity and the adverse action.

The innovation in Stanley is not in the articulation of these elements, but in the court’s conclusion that where the “adverse action” is a law enforcement search, the causation requirement must be filtered through the same “no probable cause” lens that Hartman and Nieves impose for retaliatory prosecution and arrest claims.

2. The “no probable cause” rule: Hartman and Nieves

The key Supreme Court precedents are:

Hartman v. Moore, 547 U.S. 250 (2006): The Court held that a plaintiff alleging retaliatory prosecution must plead and prove the absence of probable cause for the underlying criminal charge. The rationale is fundamentally causal: if there was probable cause to prosecute, it becomes difficult to infer that retaliatory animus was the “but for” cause of the prosecution rather than the plaintiff’s own potentially criminal conduct.
Nieves v. Bartlett, 587 U.S. 391 (2019): The Court extended Hartman’s reasoning to retaliatory arrest claims. It again emphasized that the existence of probable cause is a powerful objective indicator that the adverse action was driven by legitimate law enforcement reasons, not protected speech. Nieves carved out a narrow exception: plaintiffs can proceed even when probable cause exists if they present “objective evidence that [they were] arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been” (Nieves, 587 U.S. at 407).

The Fourth Circuit noted that Hartman and Nieves grounded this “no probable cause” requirement in causation principles, not in the specific contours of any common‑law tort. It cited Nazario v. Gutierrez, 103 F.4th 213, 237 (4th Cir. 2024), which described the no‑probable‑cause element as a means to deal with the “complex causal inquiry” of separating governmental malice from the plaintiff’s own potentially criminal conduct.

3. The “objective evidence” exception: Nieves and Gonzalez v. Trevino

The Supreme Court’s Nieves exception is narrow. It is designed for situations where:

The offense is rarely enforced through arrest or prosecution;
A plaintiff can show, objectively, that comparable conduct normally does not lead to arrest or prosecution; and
The plaintiff’s protected speech plausibly explains why he, unlike others, was targeted.

In Gonzalez v. Trevino, 602 U.S. 653 (2024) (per curiam), the Court elaborated on that exception, approving reliance on objective, comparative evidence such as surveys of charging practices that reveal a plaintiff was treated differently from others engaged in similar conduct.

Stanley imports this framework into the search context, but stresses that the exception remains narrow and focused on objective comparators, not merely on direct evidence of animus.

4. Common‑law analogies and their limits: Thompson, Manuel, and treatise sources

Stanley argued that retaliatory search claims should be analogized to the common‑law tort of trespass, which did not have a “probable cause” element. By contrast, retaliatory prosecution and arrest claims resemble malicious prosecution, which did require absence of probable cause. See Thompson v. Clark, 596 U.S. 36, 43–44 (2022) (noting that malicious prosecution’s “gravamen” is the initiation of charges without probable cause).

The court rejected Stanley’s attempt to use this analogy to escape Hartman and Nieves:

Citing Manuel v. City of Joliet, 580 U.S. 357, 370 (2017), the court acknowledged that common‑law torts help illuminate the meaning of constitutional claims, but are not dispositive.
The court accepted that search‑based claims often resemble trespass more than malicious prosecution. It cited its own decision in Smith v. Travelpiece, 31 F.4th 878, 886–87 (4th Cir. 2022), which specifically linked Fourth Amendment search claims to common‑law trespass.
However, both malicious prosecution and trespass recognized exceptions for legitimate or authorized governmental intrusions. The opinion quotes Cooley’s 19th‑century tort treatise for the principle that malicious prosecution requires the proceeding to be “instituted without any probable cause,” and Bigelow’s treatise stating that entry onto another’s land was trespass only when “without license or permission.”

By invoking these treatises, the court turns Stanley’s argument on its head: common‑law trespass does not negate the role of “probable cause” or lawful authority; it underscores that government action backed by lawful authorization—here, a warrant supported by probable cause—falls outside the scope of the tort analogy altogether.

5. Probable cause standards in search law: Gates and Lalor

To evaluate probable cause for the search warrants, the court relied on:

Illinois v. Gates, 462 U.S. 213 (1983): Probable cause is a “practical, nontechnical” standard assessed under the “totality of the circumstances,” and reviewing courts afford “great deference” to a magistrate’s finding of probable cause.
United States v. Lalor, 996 F.2d 1578 (4th Cir. 1993): The test for a search warrant is not whether the target is guilty of a crime, but whether there is a fair probability that evidence of a crime will be found in the place to be searched. The suspect’s guilt or innocence is conceptually distinct from the location of evidence.

These cases support the court’s critical distinction between:

Probable cause to believe a specific place (e.g., a Facebook or Gmail account) contains evidence of a crime; and
Probable cause to believe a specific person committed that crime, justifying arrest or charging.

6. Fourth Amendment doctrine: Pearson and Porterfield

For the Fourth Amendment claim, the court cited:

Pearson v. Callahan, 555 U.S. 223 (2009): Although best known for modifying the Saucier sequence in qualified immunity cases, Pearson recognizes that probable cause is a core component of Fourth Amendment reasonableness analysis, and a warrant issued on probable cause ordinarily insulates officers from liability.
Porterfield v. Lott, 156 F.3d 563 (4th Cir. 1998): A Fourth Amendment false arrest or seizure claim requires a showing of lack of probable cause. By analogy, a search allegedly in violation of the Fourth Amendment likewise fails if supported by probable cause.

These authorities reinforce that, for a Fourth Amendment unreasonable‑search claim, the existence of probable cause is itself sufficient to defeat the claim, independent of any First Amendment considerations about motive.

7. Pleading and amendment standards: Callahan, Katyle, Triangle Capital, and Ahumada

On the procedural side, the court referenced:

Callahan v. Dep’t of Pub. Safety, 18 F.4th 142 (4th Cir. 2021) (de novo review of dismissal);
In re Triangle Capital Corp. Sec. Litig., 988 F.3d 743 (4th Cir. 2021) (standard for denying leave to amend as futile);
Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462 (4th Cir. 2011) (futility means that the proposed amended complaint would still fail to state a claim); and
United States ex rel. Ahumada v. Nat’l Indus. for the Severely Handicapped, 756 F.3d 268 (4th Cir. 2014) (futility review is de novo).

These cases frame the court’s conclusion that, because the proposed second amended complaint still did not plausibly allege a lack of probable cause or satisfy the Nieves exception, the district court correctly denied leave to amend.

8. Inter‑circuit alignment: Degenhardt v. Bintliff

The court noted that its conclusion aligns with the Fifth Circuit’s decision in Degenhardt v. Bintliff, 117 F.4th 747 (5th Cir. 2024), which likewise applied Hartman’s no‑probable‑cause requirement to First Amendment retaliatory search claims. This signals an emerging consensus among circuits that retaliatory search claims should be treated doctrinally parallel to retaliatory arrests and prosecutions for purposes of the probable cause requirement.

B. The Court’s Legal Reasoning

1. Extending Hartman and Nieves to retaliatory searches

The central doctrinal move in Stanley is the extension of the Hartman/Nieves framework to First Amendment claims based on allegedly retaliatory searches.

The court explains:

The First Amendment prohibits subjecting an individual to adverse governmental action because of his speech. Searches, like arrests and prosecutions, are plainly adverse actions capable of deterring ordinary citizens from speaking.
To succeed on a retaliation claim, however, the plaintiff must establish causation: that the adverse action would not have occurred but for the protected speech.
When probable cause exists to believe that a search will uncover evidence of criminal activity, it is “much less likely” that the search’s true cause was retaliatory animus. Probable cause provides a strong alternative explanation for the action.
The Supreme Court in Hartman and Nieves dealt with precisely this problem by requiring plaintiffs to allege and prove the absence of probable cause, except in narrow circumstances where objective evidence shows differential treatment.

The Fourth Circuit reasons that the same causal complexity arises when the adverse action is a search. If officers have probable cause to believe evidence of a computer trespass is located in a particular email or social media account, it is very difficult to say the search “would not have occurred” absent the plaintiff’s speech, even if officers disliked that speech. Accordingly, the court “extend[s]” Hartman to retaliatory search claims and holds that the plaintiff must plead the absence of probable cause (or satisfy the narrow exception).

2. Rejecting the trespass‑based distinction

Stanley’s principal doctrinal argument was that retaliatory search claims should not be subject to a probable cause requirement because, at common law, they most closely resemble trespass, not malicious prosecution. Trespass did not include a “probable cause” element, and hence, he argued, First Amendment retaliatory search claims should not either.

The court responds on two levels:

The Supreme Court’s reasoning in Hartman and Nieves is not derived from malicious prosecution’s elements. Those decisions relied on causation principles and the need to avoid conflating retaliatory motive with legitimate enforcement actions. The analogy to malicious prosecution was not the doctrinal foundation of the “no probable cause” requirement.
Common‑law trespass itself recognized a “license” or authorization exception. An officer entering land with lawful authority (e.g., pursuant to a valid warrant) was not a trespasser. Just as malicious prosecution required absence of probable cause, trespass required lack of license or permission. By analogy, a search conducted under a properly issued warrant supported by probable cause is akin to a licensed entry, not to wrongful trespass.

Thus, even accepting that retaliatory search claims resemble trespass more than malicious prosecution, the underlying common‑law structure supports a role for probable cause and lawful authorization rather than undermining it.

3. The Nieves “objective evidence” exception and its limits in search cases

The court next considers whether Stanley might fit within the Nieves exception, which allows a retaliatory arrest (and now, by extension, a retaliatory search) claim to proceed despite the existence of probable cause if the plaintiff produces objective evidence that:

Others similarly situated did not suffer the same enforcement action for comparable conduct; and
The difference in treatment plausibly reflects retaliation for protected speech.

Stanley pointed to the warrant affidavit’s reference to his “disdain” for the Rocky Mount Police Department as evidence of animus. The court held this was plainly insufficient:

The exception is not triggered by evidence of actual animus or improper motive; that is the ordinary subject of any retaliation claim. The whole point of the “no probable cause” rule is to limit disputes about subjective motive when an objective basis for action exists.
The exception requires comparative and objective evidence—proof that others who engaged in the same underlying conduct were not subjected to searches or arrests, especially in contexts where the offense is rarely enforced. The court invoked Gonzalez v. Trevino, where the plaintiff presented data showing that prosecutions under a particular statute over a decade did not resemble her case.

Stanley offered no evidence that Virginia authorities ordinarily refrain from pursuing computer trespass investigations involving unauthorized copying of internal police surveillance video, or that social‑media searches are uniquely used against dissenters. Without such comparator evidence, he could not invoke the exception even if the record reflected some hostility toward his speech.

4. Why Stanley’s pleadings did not establish lack of probable cause

Even apart from the exception, Stanley had to plausibly plead that the warrants lacked probable cause. The court found his allegations wanting on several fronts.

First, his bare assertion that Bocock “had no probable cause to obtain the search warrants” is conclusory. At the pleading stage, labels and conclusory statements do not suffice; the complaint must contain factual allegations that, if true, would show a lack of probable cause.

Second, Stanley relied heavily on the Commonwealth’s Attorney’s later decision not to charge anyone with computer trespass, arguing that this showed a lack of probable cause for the earlier searches. The court rejected this, carefully distinguishing:

Probable cause to search or seize evidence: requires a fair probability that evidence of a crime will be found in a particular place or item; and
Probable cause to arrest or prosecute: requires a fair probability that a specific person committed a crime, including the necessary mental state elements (such as malice or deceit).

A charging decision that no person can be proved to have acted with the requisite mental state does not retroactively negate a reasonable belief that evidence of the unauthorized copying might be found in Stanley’s online accounts. As the court put it (quoting Lalor), for search warrants what matters is not “whether the target of the search is suspected of a crime,” but “whether it is reasonable to believe that the items to be seized will be found in the place to be searched.”

Third, the court examined the facts alleged and concluded that probable cause clearly existed:

Stanley posted internal video from the Police Department’s office security system.
Only four employees had access to that internal system, two of whom were no longer employed at the time of the posting.
The video was “computer data” within the meaning of Virginia’s computer trespass statute.
Stanley’s Facebook account was demonstrably the mechanism used to disseminate the video, and his Gmail account was plausibly a repository of communications about how he obtained or transmitted it.

The court underscored that in the digital age, it is “hard to imagine” how posting such a video to Facebook could occur “without a computer.” From these facts, a magistrate could reasonably find probable cause to believe that Stanley’s Facebook and Gmail accounts contained evidence relevant to computer trespass.

Finally, the court stressed that reviewing courts afford “great deference” to the magistrate’s probable cause determinations. Neutral magistrates had already found probable cause for both warrants. In the absence of factual allegations undermining that determination, the court would not second‑guess those judgments.

5. Refusal to micromanage police investigative choices

In a notable aside (footnote 5), the court rejected Stanley’s argument that Bocock lacked probable cause because “other places were more likely to contain evidence” than his Facebook and Gmail accounts. The court characterized this as an attempt to “micromanage investigative techniques” through a § 1983 action. Even if other avenues might have been better or more efficient, that has “no bearing” on whether probable cause existed to search the accounts actually targeted.

This signals a clear boundary: the Fourth Amendment and First Amendment retaliation doctrines do not empower courts (or juries) to second‑guess tactical law‑enforcement decisions concerning which evidence sources to pursue first, so long as each specific search is supported by probable cause.

6. Fourth Amendment claim rises and falls with probable cause

The court dealt with the Fourth Amendment claim briefly but decisively. A Fourth Amendment unreasonable‑search claim ordinarily requires the plaintiff to show the absence of probable cause (where a warrant is at issue) or otherwise unreasonable conduct.

Because the same facts that defeated Stanley’s First Amendment claim also demonstrated the existence of probable cause, the Fourth Amendment claim necessarily fell as well. The court cited Pearson and Porterfield as establishing that probable cause is a central component of Fourth Amendment reasonableness and that the presence of probable cause defeats search‑based § 1983 claims.

Notably, the court again declined to reach qualified immunity, resting its decision solely on the failure to state a constitutional violation.

7. Futility and denial of leave to amend

Finally, the court addressed Stanley’s challenge to the denial of leave to file a second amended complaint. Rule 15(a)(2) instructs courts to “freely give leave [to amend] when justice so requires,” but leave may be denied where amendment would be futile—that is, where the proposed complaint still fails to state a claim.

The district court had treated the allegations of the proposed second amended complaint as if they were the operative complaint, and still concluded that Stanley had not plausibly alleged either:

The absence of probable cause for the search warrants; or
Objective comparator evidence bringing him within the Nieves exception.

The Fourth Circuit agreed. The core deficiencies (lack of nonconclusory facts showing no probable cause and absence of objective comparator evidence) remained. Accordingly, any further amendment would be futile, and the denial of leave to amend was proper.

C. Impact and Implications

1. A clear rule for retaliatory search claims in the Fourth Circuit

The most important doctrinal impact of Stanley is the establishment of a clear, binding rule for First Amendment retaliatory search claims in the Fourth Circuit:

A plaintiff alleging that law enforcement sought or executed a search warrant in retaliation for his speech must plead and prove the absence of probable cause supporting the search; and
The only apparent escape valve is the narrow Nieves “objective evidence” exception, requiring comparative, objective proof of differential treatment of similarly situated individuals.

This significantly constrains the circumstances in which activists, journalists, or other outspoken individuals can turn a search they perceive as retaliatory into a viable § 1983 First Amendment claim. If officers can show a fair probability that the targeted location or account contains evidence of an offense, and if no objective pattern of selective enforcement is shown, the claim will fail at the pleading stage.

2. Stronger insulation for warrant‑backed digital searches

In the era of digital evidence, police investigations frequently involve search warrants for social media profiles, cloud accounts, and email. Stanley strengthens the doctrinal protection for such searches when:

They are supported by properly issued warrants based on factual showings; and
The factual grounds for probable cause rest on the account’s visible involvement in the conduct under investigation (e.g., posting allegedly illicit content or communications about it).

Even where affidavits mention the suspect’s critical or hostile speech about government, that fact alone will not suffice to create First Amendment liability if other facts robustly support probable cause to search digital accounts for evidence of a traditional offense (here, unauthorized copying of internal surveillance video).

3. Practical guidance for plaintiffs’ lawyers

For plaintiffs’ counsel, Stanley offers both warning and guidance:

Conclusory allegations are fatal. Simply asserting “no probable cause” is insufficient. Complaints must set out concrete facts showing why the officer’s information, taken as a whole, did not amount to probable cause at the time of the warrant application.
Separate charging decisions from search decisions. Plaintiffs cannot rely on prosecutors’ later declination to charge as proof that earlier searches lacked probable cause. They must attack the factual basis and inferences supporting the search itself.
Develop “objective evidence” early if seeking to invoke Nieves. Where charges or searches follow minor violations or rarely enforced statutes, plaintiffs should—if possible—plead comparative facts: e.g., patterns of non‑enforcement, absence of similar searches in analogous cases, or data showing that their treatment was anomalous.
Consider Fourth Amendment theories distinct from probable cause. While Stanley focuses on probable cause, other Fourth Amendment issues (e.g., particularity, overbreadth of digital warrants, or material false statements and omissions in affidavits under Franks v. Delaware) remain available in appropriate cases. Nothing in this opinion precludes such theories, but they must be specifically pleaded and supported.

4. Implications for law enforcement

For law enforcement and government attorneys, the decision:

Reassures that warrants grounded in a strong factual showing of probable cause provide substantial protection against both First and Fourth Amendment civil liability, even where the target is a vocal government critic.
Emphasizes the importance of objective justifications in affidavits. References to a suspect’s speech or attitudes (like “disdain for the government”) should be secondary to evidence tying the account or location to the suspected offense.
Confirms that courts will not “micromanage” investigative choice of targets, so long as probable cause exists for each search.

However, officers should note that Stanley does not immunize searches where probable cause is genuinely lacking or where affidavits materially misrepresent or omit critical facts. Those remain viable bases for Fourth Amendment and, potentially, First Amendment claims.

5. Protection of speech vs. protection of investigations

From a civil‑liberties perspective, Stanley continues a broader trend in Supreme Court and circuit‑court doctrine: where law enforcement actions are supported by probable cause, First Amendment retaliation claims face significant doctrinal barriers. The decision reflects a judicial preference to resolve disputes over allegedly retaliatory searches, arrests, and prosecutions predominantly on objective grounds rather than probing into states of mind.

At the same time, the Nieves/Gonzalez exception, now acknowledged in the search context, preserves a narrow but important pathway for especially egregious patterns of selective enforcement. Future plaintiffs in the Fourth Circuit who can present robust statistical or comparator evidence that speech critics are singled out for searches under rarely enforced laws may still be able to pursue retaliation claims.

V. Simplifying the Core Legal Concepts

A. Probable cause to search vs. probable cause to charge

A central conceptual point in Stanley is the difference between:

Probable cause to search: Do we have a fair probability that evidence of a crime will be found in this place or account? This is a location‑focused test.
Probable cause to arrest/charge: Do we have a fair probability that this person committed a crime (including intent or malice where required)? This is person‑focused.

A prosecutor’s later decision not to charge anyone—perhaps because there is no proof of malice or deception—says nothing definitive about whether it was reasonable, at an earlier time, to believe that a suspect’s Facebook or Gmail account held evidence of unauthorized copying.

B. First Amendment retaliation and the role of probable cause

In retaliation cases, the basic idea is:

The plaintiff engages in protected speech (e.g., criticism of the police).
The government takes adverse action (e.g., obtains a search warrant).
The plaintiff must show that the adverse action would not have occurred but for the protected speech.

Probable cause is a powerful objective reason why the action would have happened anyway. If there is a legitimate, non‑speech‑related reason to act (like investigating a plausible computer trespass), it undercuts the claim that speech was the but‑for cause. This is why courts require plaintiffs to show a lack of probable cause (or fit into the narrow exception) to keep a First Amendment retaliation claim alive in the search context.

C. The Nieves “objective evidence” exception

The exception is best understood through a simplified example:

A city rarely, if ever, arrests people for jaywalking.
Hundreds of jaywalkers are let off with warnings every month.
One person is arrested for jaywalking shortly after loudly criticizing the mayor; the arrest comes immediately after his speech.
He can show that no one else, in years, has been arrested under the jaywalking law despite identical conduct.

In such a case:

Probable cause technically exists (he jaywalked), but
Objective, comparative evidence shows that the law is not normally enforced that way.

The Nieves exception allows him to proceed with a retaliation claim despite probable cause, because the outlier enforcement pattern strongly suggests that his speech, not his jaywalking, triggered the arrest. Stanley confirms that a similar logic could apply to searches—but only where comparable objective evidence of selective enforcement is presented.

D. Qualified immunity and why it was unnecessary here

Qualified immunity shields government officials from civil damages unless they violate clearly established constitutional rights. Courts often analyze two questions:

Did the officer’s conduct violate a constitutional right?
Was that right clearly established at the time?

In Stanley, the court did not reach qualified immunity because it found no constitutional violation at all. The existence of probable cause meant no First Amendment retaliation claim (under the extended Hartman/Nieves framework) and no Fourth Amendment unreasonable‑search claim. Without a constitutional violation, the question whether the law was clearly established never arose.

E. Futility of amendment under Rule 15

Rule 15 encourages liberal amendment to pleadings, but courts may deny leave where amendment would be “futile.” Futility means that, even if all new facts in the proposed complaint are accepted as true, the complaint still fails to state a claim under Rule 12(b)(6).

In Stanley, the second amended complaint still:

Did not include plausible, nonconclusory facts undermining probable cause; and
Did not add objective comparator evidence sufficient to invoke the Nieves exception.

Therefore, no amount of further amendment—at least along these lines—could cure the legal deficiency, and the district court properly denied leave to amend.

VI. Conclusion

Stanley v. Bocock makes a significant, clarifying contribution to First Amendment and Fourth Amendment jurisprudence in the Fourth Circuit. It holds that:

First Amendment retaliatory search claims, like retaliatory arrest and prosecution claims, require plaintiffs to plead and prove the absence of probable cause, absent the narrow Nieves “objective evidence” exception; and
Where a neutral magistrate has issued search warrants supported by a concrete, factual nexus between the account or location and a suspected crime, courts will not infer retaliation solely from evidence of government animus toward a plaintiff’s speech.

At a broader level, the decision reflects a judicial preference for objective, evidence‑based screens—probable cause and comparative enforcement data—over inquiries into subjective motive in the context of law enforcement actions. It offers substantial protection for properly supported digital searches while leaving open, in principle, a narrow avenue for plaintiffs who can show that enforcement practices, including the use of search warrants, are selectively deployed against speakers based on their views.

For lawyers, investigators, activists, and courts within the Fourth Circuit, Stanley now stands as the leading precedent on the intersection of First Amendment retaliation doctrine and search‑warrant practice, particularly in the realm of social media and email investigations.

Probable Cause as a Prerequisite for First Amendment Retaliatory Search Claims: Commentary on Stanley v. Bocock