whether he signed it personally, admitting that sometimes his partner "forges" his signature. One person may authorize another to sign a document on his behalf. If his partner signed Leyden's name with his approval, the only reasonable inference here, it would not be forgery.
Patterson also cannot recover from either defendant for perjury. Policemen, like other witnesses, have absolute immunity from liability for testimony given in a criminal proceeding. Briscoe v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983), held that witnesses have absolute immunity for giving perjured testimony at a criminal trial, and the Seventh Circuit has extended absolute immunity to witnesses testifying pretrial hearings. Curtis v. Bembenek, 48 F.3d 281 (7th Cir. 1995).
We now come to Patterson's central claims of unlawful search and arrest. Defendants are correct that neither a warrantless arrest nor a warrantless search is necessarily a constitutional violation, but the record discloses the outline of a claim. In reviewing a pro se complaint, the court is directed to consider the allegations contained in all documents filed with the court. Hughes v. Rowe, 449 U.S. 5, 10 n.8, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992). Patterson's amended complaint, while unacceptable as a complaint, may be considered in determining whether Patterson has stated a claim. A warrantless search is normally only permissible if consent has been obtained, as an incident to an arrest that is otherwise justified, or when exigent circumstances excuse the warrant requirement. Patterson states in his amended complaint that he was "practically forced" to let the police search his house and cab, negating consent, and it may be reasonably inferred that his arrest was a result of the searches rather than the other way around. Under federal notice pleading, Patterson does not have the burden of pleading the absence of exigent circumstances. He has therefore alleged searches in violation of his Fourth Amendment rights, and, inferring that the search yielded probable cause for his arrest, an unlawful arrest as well.
EFFECT OF PATTERSON'S CONVICTION
Defendants have provided a certified statement by the Clerk of the Circuit Court of Cook County showing that Patterson was convicted of attempted murder and sentenced on December 18, 1995 to 18 years imprisonment. Def. Exh. C. Defendants are correct that the court may take judicial notice of matters of public record in deciding a motion to dismiss without converting it to a motion for summary judgment. Henson v. Edit Services, 29 F.3d 280, 284 (7th Cir. 1994). According to defendants, Patterson's conviction has two consequences. First, it negates the element of lack of probable cause, foreclosing a claim for an unlawful arrest. Second, under Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), Patterson may not sue unless his conviction has been overturned.
A. Conviction as Proof of Probable Cause
According to defendants, "it is well established that a plaintiff's criminal conviction bars a suit for false arrest based on a claim that there was no probable cause to arrest the plaintiff." Def. Br. at 5. This states the law a bit broadly. Defendants cite King v. Goldsmith, 897 F.2d 885 (7th Cir. 1990), appeal after remand, 21 F.3d 430 (7th Cir. 1994) (table), cert. denied, U.S. , 115 S. Ct. 937, 130 L. Ed. 2d 882 (1995), in which the Seventh Circuit noted that there was a common-law rule to that effect. However, the court in King did not hold that Illinois follows that rule, and found it unnecessary to decide whether the rule applies to a claim under § 1983 for the federal analog of a false arrest, an arrest in violation of the Fourth Amendment.
King noted that Cameron v. Fogarty, 806 F.2d 380, 386-89 (2d Cir.1986), cert. denied, 481 U.S. 1016, 95 L. Ed. 2d 501, 107 S. Ct. 1894 (1987), had applied the common law rule to a suit under § 1983, but that this had been questioned in Rose v. Bartle, 871 F.2d 331, 351 (3d Cir. 1989). King, 897 F.2d at 886. The Sixth, Eighth and Tenth Circuits have followed Cameron. Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir. 1988); Malady v. Crunk, 902 F.2d 10, 11 (8th Cir. 1990); Howard v. Dickerson, 34 F.3d 978, 981 n.2 (10th Cir. 1994) (apparent approval in dictum). Although recognizing that King did not decide the question in this circuit, some judges of this court have followed Cameron as well. See, e.g., Jimmerson v. Campbell, 1993 U.S. Dist. LEXIS 16381, 1993 WL 479053 (N.D.Ill.) (Marovich, J.). For the reasons that follow, we respectfully disagree.
The Second Circuit in Cameron reasoned that § 1983 was enacted against a background of accepted common-law rules of tort liability. The court noted that in Pierson v. Ray, 386 U.S. 547, 553-56, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), the Supreme Court had reviewed traditional principles with respect to the immunity of judges and law enforcement officials and found that the legislative history of § 1983 gave no clear indication that Congress had intended any wholesale abolition of common-law immunities and concluded that those common-law defenses were available. Cameron, 806 F.2d at 386.
At common law, an arrest without probable cause could give rise to an action in tort for false arrest or malicious prosecution. Conviction barred an action for malicious prosecution, since one of the elements of the tort was a termination of the proceedings in the plaintiff's favor. Termination in the plaintiff's favor was not an element of the tort of false arrest. Nevertheless, the plaintiff was required to prove that the arrest had been without probable cause, and the common-law rule was that conviction conclusively established probable cause. Among the authorities cited in Cameron was the Restatement (Second) of Torts § 667(1) ("conviction of the accused ... conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means"). The court concluded:
Thus, the common-law rule ... was and is that the plaintiff can under no circumstances recover if he was convicted of the offense for which he was arrested. Broughton v. State, 37 N.Y.2d 451, 458, 373 N.Y.S.2d 87, 95, 335 N.E.2d 310, 315; Harper & James § 4.11, at 345; id. § 4.12, at 346. This rule "represents the compromise between two conflicting interests of the highest order--the interest in personal liberty and the interest in apprehension of criminals," id. § 3.18, at 275, and constitutes a refusal as a matter of principle to permit any inference that the arrest of a person thereafter adjudged guilty had no reasonable basis. The law enforcement officer is given this protection because he "has a duty to the public to prevent crime and arrest criminals; the performance of these duties would be seriously impaired unless peace officers were given considerable discretion in their performance and protected from liability for the consequences of honest and reasonable mistakes." Restatement § 121, comment g.