April Smith v. Jason Munday , 848 F.3d 248 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1092
APRIL SMITH,
Plaintiff - Appellant,
v.
JASON MUNDAY; CHARLES MCGINLEY; BRIAN GREENE; RODNEY JORDAN;
CITY OF LINCOLNTON; LINCOLNTON POLICE DEPARTMENT; JOHN DOE;
JANE DOE,
Defendants – Appellees,
and
RUFUS LYNCH; MARK LESASSIER,
Defendants.
No. 15-1496
APRIL SMITH,
Plaintiff - Appellant,
v.
JASON MUNDAY; CHARLES MCGINLEY; BRIAN GREENE; RODNEY JORDAN;
CITY OF LINCOLNTON; LINCOLNTON POLICE DEPARTMENT; MARK
LESASSIER; JOHN DOE; JANE DOE,
Defendants – Appellees,
and
RUFUS LYNCH,
Defendant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:12-cv-00202-RLV-DSC)
Argued: September 20, 2016 Decided: February 3, 2017
Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Chief Judge Gregory wrote the opinion, in which Judge
King joined. Judge Agee wrote an opinion concurring in part and
dissenting in part.
ARGUED: Algernon Williams, Sr., LAW OFFICE OF ALGERNON WILLIAMS,
Charlotte, North Carolina, for Appellant. Patrick Houghton
Flanagan, CRANFILL SUMNER & HARTZOG LLP, Charlotte, North
Carolina; Joseph Finarelli, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF:
Matthew K. Lilly, CRANFILL SUMNER & HARTZOG LLP, Charlotte,
North Carolina; Roy Cooper, North Carolina Attorney General,
Donna Elizabeth Tanner, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.
2
GREGORY, Chief Judge:
Plaintiff-appellant April Yvette Smith brought a suit under
42 U.S.C. § 1983 alleging violations of her constitutional
rights when she was arrested and held in police custody for
eighty days. She named as defendants the investigating
officers, Defendants Jason Munday and Charles McGinley; the
arresting officers, Defendants Brian Greene and Mark Lesassier;
the Chief of Police, Defendant Rodney Jordan; the City of
Lincolnton; and the Lincolnton Police Department. 1 She raised
Fourth Amendment and tort claims in both direct and supervisory
contexts, all of which center around the allegation that she was
arrested without probable cause.
The district court found that the officers had probable
cause to believe that Smith illegally possessed and sold crack
cocaine. Thus, no officers violated her constitutional rights
or caused her injury, and neither their supervisor nor employer
failed to prevent such injuries. The district court accordingly
granted summary judgment in favor of all of the defendants. We
reverse and remand for further proceedings.
1Smith also named the confidential informant, Rufus Lynch,
as a defendant, but voluntarily dismissed him. J.A. 4-5.
3
I.
When reviewing a grant of summary judgment, we “view all
reasonable inferences drawn from the evidence in the light that
is most favorable to the non-moving party.” Nader v. Blair, 549
F.3d 953, 958 (4th Cir. 2008).
On March 10, 2009, officers Munday and McGinley conducted an
undercover investigation using a confidential informant, Rufus
Lynch Sr. J.A. 84, 105. The officers searched Lynch, wired him
with audio and video recorders, and gave him sixty dollars. J.A.
84–85. Lynch then went to 728 East Pine Street, where he
purchased crack cocaine from two individuals. J.A. 85. After
the transaction, Lynch returned to the officers. Id. He told
the officers that he purchased drugs from April Smith, a black
female. Id. The detective’s notes identify April Smith as such:
“B/F April Smith,” and “April B/F skinny $20 1 rock in plastic,
Smith 40s.” Supp. J.A. 17.
Because the audio recorder had no batteries, it failed to
record the transaction. Supp. J.A. 17. And because the camera
wired to Lynch pointed in the wrong direction, the video
recording did not capture the drug sale. J.A. 85. The video
instead shows an unidentified black woman sitting on a front
porch, and two other individuals standing on the porch. J.A. 79.
It also recorded a discussion of prices. Id.4
At some point during the next nine months, Munday scanned
police databases for residents of Lincoln County named April
Smith with criminal records. He then stumbled upon April Yvette
Smith, a black woman who lived in Lincoln County and had been
convicted of selling crack cocaine in 1993, 1997, and 2005. His
search also revealed at least two other April Smiths with
criminal records. Supp. J.A. 40-41. He had no indication that
the woman who sold crack cocaine to Lynch in March 2009 had a
criminal record, or was even a Lincoln County resident. And the
record reflects no further attempt by Munday to investigate Smith
or connect her to the crime.
Nevertheless, nine months after the sale, on December 20,
2009, Munday applied for and received an arrest warrant for
Smith, on charges of possession with intent to sell crack cocaine
and selling or distributing cocaine. Supp. J.A. 77. And on
December 22, 2009, Defendants Greene and Lesassier served the
arrest warrant and arrested Smith in her home, which was eleven
miles away from the site of the drug sale. See Supp. J.A. 86.
Smith was held in custody for approximately eighty days, facing
the threat of prosecution. Over the course of her incarceration,
Smith allegedly lost her job. J.A. 43. The Lincoln County
District Attorney’s Office then requested that the charges be
dismissed.
5
Smith filed suit, alleging constitutional violations of the
Fourth and Fourteenth Amendments, 2 and state-law claims for
intentional or negligent infliction of emotional distress,
negligence, negligent supervision, gross negligence, assault,
battery, false imprisonment, and false arrest.
The district court found that no constitutional violation
occurred. The district court reasoned that the investigating
officers were looking for a black woman named April Smith who
sold drugs, and they found a black woman named April Smith who
had sold drugs in the past, and who was arrested only eleven
miles away from where the drug sale occurred. The one factor
the district court believed counseled against probable cause was
Smith’s weight. The seller was a skinny woman; conversely,
Smith was 160 pounds upon arrest, and alleged that she weighed
more than 200 pounds in March 2009, when the sale occurred. But
the officers were unaware of Smith’s weight at the time of the
transaction, and the district court reasoned that 160 pounds was
not so different from “skinny,” especially with an intervening
nine months, so as to discredit a finding of probable cause.
Thus, even if she ultimately might not have been the correct
individual, the district court found that--at the time, with the
2 Smith also raised Fifth Amendment claims. But her Fifth
Amendment claims were identical to her Fourth Amendment claims,
and otherwise not discussed.
6
information then known--the investigating officers had probable
cause to believe that Smith was the woman who sold Lynch crack
cocaine.
But even ignoring Smith’s weight, a criminal history,
common race, common gender, and unfortunately common name is not
enough to establish probable cause. For this reason, we reverse
the district court and remand for further proceedings.
II.
We review a district court’s grant of summary judgment de
novo. Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 817 (4th
Cir. 1995). Summary judgment should be granted only when “the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). All “factual disputes and any competing,
rational inferences [are resolved] in the light most favorable to
the party opposing that motion.” Rossignol v. Voorhaar, 316 F.3d
516, 523 (4th Cir. 2003) (quoting Wightman v. Springfield
Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)).
A.
The district court properly stylized Smith’s false arrest
claims against the investigating officers as malicious
prosecution claims. J.A. 107. A claim of malicious prosecution
7
under § 1983 is a claim “founded on a Fourth Amendment seizure
that incorporates elements of the analogous common law tort of
malicious prosecution.” Lambert v. Williams, 223 F.3d 257, 262
(4th Cir. 2000). This Fourth Amendment claim requires “that [1]
the defendant ha[s] seized plaintiff pursuant to legal process
that was not supported by probable cause and [2] that the
criminal proceedings have terminated in plaintiff’s favor.”
Massey v. Ojanit, 759 F.3d 343, 356 (4th Cir. 2014) (quoting
Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012)).
Here, the sole question at issue is whether there was
probable cause to arrest Smith. Probable cause is determined by
a “totality-of-the circumstances” approach. Illinois v. Gates,
462 U.S. 213, 230 (1983). “While probable cause requires more
than bare suspicion, it requires less than that evidence
necessary to convict.” United States v. Gray, 137 F.3d 765, 769
(4th Cir. 1998) (internal quotation marks omitted). “It is an
objective standard of probability that reasonable and prudent
persons apply in everyday life.” Id.The probable-cause inquiry turns on two factors: “the
suspect’s conduct as known to the officer, and the contours of
the offense thought to be committed by that conduct.” Graham v.
Gagnon, 831 F.3d 176, 184 (4th Cir. 2016) (quoting Pritchett v.
Alford, 973 F.2d 307, 314 (4th Cir. 1992)). A court should only
consider the information the officers had at the time they sought
8
the warrant. Id. Yet the probable-cause inquiry “examine[s] the
facts within the knowledge of arresting officers to determine
whether they provide a probability on which reasonable and
prudent persons would act; we do not examine the subjective
beliefs of the arresting officers to determine whether they
thought that the facts constituted probable cause.” Id. at 185(quoting Gray, 137 F.3d at 769).
When applying for an arrest warrant, Munday simply did not
have enough information for any reasonable or prudent person to
believe there was probable cause. He lacked any information
connecting Smith’s conduct to the contours of the offense, and
certainly lacked enough evidence to create any inference more
than mere suspicion.
Of the offense, Munday knew only that Lynch, a confidential
informant used by members of the police department before but new
to him, said “April Smith,” a skinny, black woman, sold him crack
cocaine. He did not know if she had been convicted for selling
crack cocaine before or if she lived in the county.
But to find the offender, Munday merely ran a broad search
in the department’s database of individuals with criminal
histories, looking for a woman of the same name. And when he
found multiple individuals, at least two of whom were black women
named April Smith weighing between 130 and 140 pounds, he chose
one for no immediately apparent reason. Oral Argument at 18:40,
9
Smith v. Munday, -- F. 3d -- (4th Cir. Sept. 20, 2016) (No. 15-
1092), http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-
arguments (recording Munday’s lawyer admitting that Munday
searched a criminal history database to find the offender and
found three April Smiths with criminal histories residing in
Lincoln County); see also Supp. J.A. 40-41 (listing excerpts of
case report, including criminal database results revealing at
least two black women named April Smith weighing between 130-140
pounds, filed as exhibits to Munday’s sworn affidavit). There is
no evidence that Munday attempted to identify Smith as the black
woman in the video footage. There is no evidence that the
officers showed Lynch a photo of Smith to establish the
identification. There is no evidence that the officers
investigated Smith herself, or found any indication that Smith
frequented the site of the drug sale that day, that month, or at
all. Indeed, there is no explanation whatsoever for the nine-
month delay between Lynch saying a black woman named April Smith
sold crack cocaine to him and the issuance of an arrest warrant
for April Yvette Smith.
In short, Munday had no evidence about Smith’s conduct, let
alone whether she was a participant in, connected to, or even
physically present near the drug sale in question. His only
information about Smith was that she had previously been
convicted for selling drugs years past, that she was a black
10
woman, and that she was “near” the site of the drug sale because
her home address was eleven miles away. If this amount of
evidence were sufficient for probable cause, then officers would
have probable cause to obtain arrest warrants for any local
residents who fit the generic description of the day--be it
“black woman,” “black man,” or otherwise--so long as they had a
criminal history and an unfortunately common name. Such scant
evidence barely meets the threshold of “mere suspicion,” let
alone the threshold of probable cause.
An investigating officer need not “exhaust[ ] every
potential avenue of investigation.” Wadkins v. Arnold, 214 F.3d
535, 543 (4th Cir. 2000). But an investigating officer must
still conduct some sort of investigation and assemble
individualized facts that link the suspect to the crime.
In Thompson v. Prince William County, 753 F.2d 363 (4th Cir.
1985), this Court found that probable cause supported an arrest
warrant for Lisa Ann Thompson, even though--as it turned out--she
was the wrong person. There, an undercover police agent saw
Thompson driving through a parking lot and recorded her license
plate number. Id. He then purchased marijuana from a woman who
identified herself as “Lisa,” id. at 364, and he believed that
she was the same woman he had seen driving earlier. After the
sale, he ran the car’s license-plate number through a motor-
vehicle database and found that the owner of the car was Lisa Ann
11
Thompson. Id. A police informant, who worked as a bouncer at a
nearby restaurant, also told the officer that the woman driving
the car was named Lisa. Id. The officer obtained an arrest
warrant for Lisa Ann Thompson, and she was arrested. Id. at 365.
Ultimately, the officer was mistaken; Thompson was not the woman
he purchased drugs from. Yet this Court found that the officer
had probable cause to obtain an arrest warrant at the time
because he took reasonably prudent steps to determine that he was
arresting the correct person.
In Thompson, the police officer used multiple methods to
establish the arrestee’s identity, and he himself (mistakenly)
identified her as the woman he purchased drugs from. Though in
error, he connected the woman he arrested to the crime by his own
identification of her as a co-participant in the transaction.
The equivalent mistake here would be if Munday showed Lynch a
photo of Smith, and Lynch mistakenly believed that Smith was the
woman he purchased crack cocaine from. But here, Munday made no
attempt to connect Smith to the crime. And he had no evidence
whatsoever connecting Smith to the crime. Thus, Munday had no
probable cause to seek an arrest warrant.
And in Durham v. Horner, 690 F.3d 183 (4th Cir. 2012), this
Court affirmed the district court’s granting of summary judgment
based on qualified immunity because there was probable cause for
an ultimately erroneous arrest. There, a confidential informant
12
purchased drugs in Big Stone Gap, Virginia, from an “old man,”
identified thrice as Michael Dwayne Durham, who drove a Jeep with
a stolen Tennessee license plate. Id. at 185. The investigating
officer, Horner, used a Social Security Number he received from
the Task Force for that name, as well as two internet
investigative resources, Accurint and VCIN, to identify the
offender. Horner found a forty-five-year-old man named Michael
Dwayne Durham with Tennessee DMV records, a purchased Jaguar, and
addresses in Virginia (including Big Stone Gap) and Tennessee.
Id. at 185-86. Durham also had state convictions for possession
of drug paraphernalia. Id. at 186. After conducting the
investigation, Horner took no role in further proceedings. Id.A grand jury subsequently returned three indictments against
Durham for felony drug distribution. Durham was arrested and
later released because he was the wrong person. Id. at 187.
By law, “an indictment, fair upon its face, returned by a
properly constituted grand jury, conclusively determines the
existence of probable cause.” Id. at 189 (quoting Gerstein v.
Pugh, 420 U.S. 103, 117 n.19 (1975)). In Horner, a proper
indictment by a grand jury conclusively proved that there was
probable cause. Conversely, here, Munday sought no indictment by
grand jury. As a result, Durham’s “primary problem,” that a
grand jury found probable cause, is inapposite to Smith’s case.
Id. And since the record did not reveal any way in which Horner
13
participated in the indictment proceeding, the grand jury’s
determinations, not Horner, were the proximate cause of the
arrest; conversely, Munday drafted and submitted the application
for an arrest warrant.
And even if the court looked beyond the dispositive nature
of the indictments, Horner had a first, middle, and last name;
Munday had only a common first name and a common last name.
There is no evidence that Horner or the Task Force found multiple
individuals by that name; Munday’s counsel admits that even an
area as small as Lincoln County had three April Smiths with
criminal histories. Horner found an individual whose prior
residence and DMV record matched the state of the seller’s stolen
car; Munday had no such identifying information connecting Smith
to the crime, other than a common name, gender, race, and generic
description as “skinny.” “Horner was ‘not required to exhaust
every potentially exculpatory lead or resolve every doubt’” to
show probable cause. Id. at 190 (quoting Miller v. Prince
George’s County, 475 F.3d 621, 630 (4th Cir. 2007)). But he
still had to conduct some level of investigation. And he did.
Munday conducted none.
A magistrate judge’s approval of the arrest warrant does not
alter this conclusion. We generally accord great deference to a
magistrate judge’s determination of probable cause, but that
deference is not “boundless.” United States v. Leon, 468 U.S.
14897, 914 (1984) (quoting Spinelli v. United States, 393 U.S. 410,
417 (1969)). “[C]ourts must also insist that the magistrate
purport to ‘perform his neutral and detached function and not
serve merely as a rubber stamp for the police.’” Id. (quoting
Aguilar v. Texas, 378 U.S. 108, 111 (1964)). Here, the evidence
placing Smith at the crime is so scant--indeed, it is non-
existent--that deferring to the magistrate judge would be
inappropriate. Munday’s application for an arrest warrant lacked
probable cause and thus violated Smith’s Fourth Amendment rights.
B.
Having found that no probable cause existed for the warrant,
the next question is whether Munday is entitled to qualified
immunity. “Where the alleged Fourth Amendment violation involves
a search or seizure pursuant to a warrant, the fact that a
neutral magistrate has issued a warrant is the clearest
indication that the officers acted in an objectively reasonable
manner, or in ‘objective good faith.’” Messerschmidt v.
Millender, 132 S. Ct. 1235, 1245 (2012) (quoting Leon, 468 U.S.
at 922-23). But there is an exception to this general rule.
Qualified immunity does not apply “where the warrant application
is so lacking in indicia of probable cause as to render official
belief in its existence unreasonable.” Malley v. Briggs, 475
U.S. 335, 344-45 (1986).
15
A warrant is so deficient in indicia of probable cause when
it has an “error that is apparent from a ‘simple glance’ at the
face of the warrant itself, not a defect that would ‘become
apparent only upon a close parsing of the warrant application.’”
Armstrong v. Asselin, 734 F.3d 984, 992 (9th Cir. 2013) (quoting
Messerschmidt, 132 S. Ct. at 1250). And here, even a glance
shows that Munday was unreasonable if he believed he had
probable cause. Smith did have a criminal history for
possessing and selling cocaine. But as discussed above, Munday
had no evidence about her conduct whatsoever, let alone any
evidence connecting her to the crime in question. It would be
unreasonable for any officer to view Munday’s dearth of evidence
as sufficient to establish probable cause. As a result,
qualified immunity does not apply.
When the Supreme Court established this reasonableness
standard, it articulated why the law should hold officers
accountable for unreasonable warrant applications:
True, an officer who knows that objectively
unreasonable decisions will be actionable may be
motivated to reflect, before submitting a request for a
warrant, upon whether he has a reasonable basis for
believing that his affidavit establishes probable
cause. But such reflection is desirable, because it
reduces the likelihood that the officer's request for a
warrant will be premature. Premature requests for
warrants are at best a waste of judicial resources; at
worst, they lead to premature arrests, which may injure
the innocent or, by giving the basis for a suppression
motion, benefit the guilty.
16
Malley, 475 U.S. at 343-44. Those very same reasons are equally
applicable here. The warrant issued in this case was wholly
unreasonable. And the premature, or simply insufficient,
request for a warrant in this case resulted in Smith’s eighty-
day incarceration under threat of prosecution and alleged loss
of her job. Had Munday more carefully reflected on his warrant
application, perhaps these injuries could have been avoided.
C.
For these reasons, we hold that Munday violated Smith’s
Fourth Amendment rights when he applied for an arrest warrant
that wholly lacked probable cause. The district court had
previously found that Smith’s state-law claims against all of
the individual officers, and negligent-supervision and pattern-
or-practice theories of liability against the Chief of Police
and City of Lincolnton failed because no constitutional
violation occurred. J.A. 111-14. Because this reversal
implicates those rulings, we remand to the district court so it
can examine its prior determinations in the first instance.
Smith also brought claims against the Lincolnton Police
Department. But a governmental entity may only be sued if the
law of the state in which the court is located permits it. Fed.
R. Civ. P. 17(b)(3). Under North Carolina law, police
departments cannot be sued as entities. See Ostwalt v.
Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 603, 607
17
(W.D.N.C. 2008); Wright v. Town of Zebulon, 688 S.E.2d 786, 789
(N.C. Ct. App. 2010). Therefore, we affirm the district court’s
dismissal of claims against the Lincolnton Police Department.
III.
Smith also brought a claim for false arrest against her
arresting officers, Greene and Lesassier. A claim for false
arrest alleges that a warrantless arrest lacked probable cause;
a claim for malicious prosecution alleges that an arrest made
pursuant to a warrant lacked probable cause. See Brooks v. City
of Winston-Salem, 85 F.3d 178, 181-82 (4th Cir. 1996). Here,
Greene and Lesassier merely executed the arrest as they were
required to do, pursuant to a facially valid warrant, so her
false arrest claim is improper. 3 As a result, we affirm the
district court on this claim.
3 Even if Smith had raised a malicious prosecution claim,
her claim would still likely have failed. Although the arrest
warrant lacked probable cause, the arresting officers were
unaware of the scant factual basis supporting the facially valid
warrant. Looking at the information they knew at the time, the
officers acted reasonably when relying on the warrant. See
Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998) (officers
who arrested Plaintiff pursuant to facially valid warrant
receive qualified immunity from malicious prosecution claim
because a reasonable person would not have known he was
violating a clearly established right).
18
IV.
For the foregoing reasons, the district court’s decision is
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
19
AGEE, Circuit Judge, concurring in part and dissenting in part:
The majority holds that the arrest warrant was not
supported by probable cause and that Officer Munday is not
entitled to qualified immunity. I disagree. The record
evidence reflects that reasonable minds could disagree as to
whether probable cause exists, and therefore Munday is entitled
to qualified immunity. For that reason, I respectfully dissent
from the majority’s decision to reverse the district court’s
judgment in favor of Munday, but concur in affirming the
district court as to the remaining claims.
I.
A.
Under the Fourth Amendment to the U.S. Constitution, “no
Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” Federal Rule
of Criminal Procedure 4(a) provides that a warrant will issue if
“the complaint establish[es] probable cause to believe that an
offense has been committed and that the defendant committed it.”
An arrest satisfies the Fourth Amendment if it is supported by
probable cause, “even if the wrong person is arrested.” Mensh
v. Dyer, 956 F.2d 36, 39 (4th Cir. 1991).
20
Probable cause is determined in view of the totality of the
circumstances. See Illinois v. Gates, 462 U.S. 213, 230-31
(1983). “Probable cause sufficient to justify an arrest
requires facts and circumstances within the officer’s knowledge
that are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing, or is about to
commit an offense.” United States v. Humphries, 372 F.3d 653,
657 (4th Cir. 2004) 1; see also Maryland v. Pringle, 540 U.S. 366,
371 (2003) (discussing the probable-cause standard).
A probable-cause inquiry “does not involve the application
of a precise legal formula or test but the commonsense and
streetwise assessment of the factual circumstances.” Humphries,
372 F.3d at 657; see also Florida v. Harris, 133 S. Ct. 1050,
1055-56 (2013) (“We have rejected rigid rules, bright-line
tests, and mechanistic inquiries in favor of a more flexible,
all-things-considered approach.”); Brinegar v. United States,
338 U.S. 160, 175 (1949) (“These are not technical; they are the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.”). The
determination of probable cause turns on probability. See
1
I have omitted internal quotation marks, alterations, and
citations here and throughout this partial dissent, unless
otherwise noted.
21
Pringle, 540 U.S. at 371 (“The probable-cause standard is
incapable of precise definition or quantification into
percentages because it deals with probabilities and depends on
the totality of the circumstances.”); Gates, 462 U.S. at 232(“[P]robable cause is a fluid concept -- turning on the
assessment of probabilities in particular factual contexts --
not readily, or even usefully, reduced to a neat set of legal
rules.”); United States v. Cortez, 449 U.S. 411, 418 (1981)
(“The process does not deal with hard certainties, but with
probabilities.”); Brinegar, 338 U.S. at 175 (“In dealing with
probable cause, however, as the very name implies, we deal with
probabilities.”); see also Humphries, 372 F.3d at 660 (rejecting
the district court’s assertion that “probable cause means more
likely than not, more than 50/50”). This is a “practical and
common-sensical standard.” Harris, 133 S. Ct. at 1055.
An appellate court’s “after-the-fact scrutiny . . . of the
sufficiency of an affidavit should not take the form of de novo
review,” and “[a] magistrate’s determination of probable cause
should be paid great deference by reviewing courts.” Gates, 462
U.S. at 236. “It is axiomatic that hindsight may not be
employed in determining whether a prior arrest or search was
made upon probable cause.” 2 Wayne R. LaFave, Search & Seizure
§ 3.2(d) (5th ed. 2016).
22
Despite the majority’s attempt to distinguish Durham v.
Horner, 690 F.3d 183 (4th Cir. 2012), from this case, our
opinion in Durham is particularly analogous. In Durham, a
confidential informant purchased drugs in Virginia from a person
he identified as Michael Dwayne Durham, “an ‘old man’ who drove
a Jeep with a stolen Tennessee license plate, number unknown.”
Id. at 185. Officer Horner conducted a search using computer
databases for “Michael Dwayne Durham” and settled on a forty-
five-year-old man living in Mississippi who had previously lived
in Tennessee and Virginia, owned a Jaguar, and had been arrested
for driving while intoxicated. Id. at 185-86. A search of the
man’s criminal history revealed convictions for possession of
drug paraphernalia in Mississippi. Id. at 186. A grand jury
indicted Durham, and he was arrested six months later in
Tennessee. Id. at 186-87. Durham sat in jail for three months
before the prosecuting attorney realized “the wrong person had
been indicted and arrested.” Id. at 187.
After the district court granted summary judgment to Horner
based on qualified immunity, Durham appealed, contending that
“Horner was not entitled to qualified immunity because he relied
on and utilized unverified information to set forth a chain of
events that would lead to the indictment and arrest of the wrong
individual.” Id. at 188. Specifically, Durham argued that the
officer knew from the computer search
23
that Durham had not had a [Virginia] address since
1999; that Horner never obtained the Tennessee license
number to confirm whether the Jeep belonged to Durham;
that Horner had not secured a photograph of Durham to
show the CI and confirm the drug dealer’s identity;
that Horner believed the dealer was approximately
sixty years old, and not, like Durham, in his mid-
forties; and that Horner admitted by deposition that
he was not a hundred percent certain that he had the
correct Michael Durham.
Id.Although we held that the grand jury indictment was
sufficient to warrant a finding of qualified immunity, we also
specifically found, irrespective of the indictment, that
there was ample evidence for a reasonable law
enforcement officer to believe that Durham was
involved in the three drug transactions -- namely, the
CI had on three occasions identified the drug dealer
as Michael Dwayne Durham; Durham had a [Virginia]
address; the drug dealer had a vehicle with Tennessee
license plates; Durham had a Tennessee driver’s
license; and Durham’s criminal history included two
drug-related convictions.
Id. at 190.
Similar to Durham, the evidence here reasonably supports a
finding that probable cause was also “ample” when viewed in the
totality of the circumstances: the informant identified the
seller as a “skinny” African-American female named “April
Smith”; Smith resided in Lincoln County, North Carolina, 2 and
2According to the 2010 census, Lincoln County is a county
of approximately 78,265 people, increasing the probability that
Smith was the April Smith that sold the drugs to the
confidential informant and thereby adding support to the finding
(Continued)
24
approximately eleven miles from where the drug transaction took
place; she is an African-American female; Smith has been
convicted of multiple felony drug offenses, including the sale
of drugs; Smith weighed approximately 166 pounds nine months
after the drug sale when she was arrested, which could be
considered “skinny”; and her arrest records reflect weight
fluctuations between 125 and 213 pounds. In fact, the evidence
of probable cause is stronger in this case because there was no
contradictory evidence 3 as in Durham where the plaintiff had no
of probable cause. See QuickFacts: Lincoln County, North
Carolina, U.S. Census Bureau,
https://www.census.gov/quickfacts/table/POP010210/37109 (last
visited Jan. 30, 2017) (saved as ECF opinion attachment); see
also United States v. Gregory, 871 F.2d 1239, 1245 (4th Cir.
1989) (taking judicial notice of census data).
3 The majority errs in its claim of contradictory evidence
of other April Smiths. There are two sets of “search results”
in the record. See Suppl. J.A. 40-42 (first set); Suppl. J.A.
97-99 (second set). A search conducted on February 4, 2010,
yielded the first set of results. A November 9, 2011, search
returned the second set of results. Both of these searches
occurred after the December 22, 2009, arrest date, and therefore
the majority cannot use either to contradict the evidence
supporting the magistrate’s finding of probable cause.
The majority opinion cites to pages 40-41 of the
Supplemental Joint Appendix (the first set of results) for its
proposition that Munday discovered multiple African-American
women named April Smith weighing between 130-140 pounds prior to
obtaining the arrest warrant. Within the same citation, the
majority also cites to the oral argument, in which Munday’s
attorney stated:
In addition to identifying Ms. Smith, Officer Munday
also ran a criminal history, and, as the Court has
pointed out, and only ran a criminal history, but as
the Court has pointed out, identified three April
(Continued)
25
connection to a Jeep, did not reside in Virginia at the time of
the drug purchases, and was significantly younger than the
informant’s age description. Despite this stronger evidence,
the majority in hindsight arrives at the conclusion that
Smiths in Lincoln County, and April Smith, the
plaintiff, has a very significant criminal history of
doing this exact same thing -- possessing and selling
cocaine -- dating back to the late 90s and throughout
the 2000s.
Oral Argument at 18:37, Smith v. Munday, No. 15-1092 (4th Cir.
Sept. 20, 2016).
The first set of results, on which the majority relies,
lists five different women named April Smith from unknown areas
and originated from the National Crime Information Center. In
turn, the second set of results lists three women, two from
Lincoln County and one from adjacent Catawba County, and
originated from the Lincoln County Sheriff’s Office. Compare
Suppl. J.A. 40-42, with Suppl. J.A. 97-99. Because Munday’s
attorney spoke of search results consisting of three women in
Lincoln County, he was probably referencing either the second
set of search results or search results not in the record, not
the search results to which the majority cites.
It is also apparent that Munday settled on Smith as the
suspect before conducting the first search because he searched
for her full name, “April Yvette Smith,” along with her birth
date. Suppl. J.A. 40. Therefore, those search results clearly
were not used to identify Smith as the suspect. Furthermore,
the second set of results does not support the majority’s
reasoning either because the two women returned by the search
other than Smith were Caucasian. They were conclusively ruled
out as suspects because of their race, leaving only Smith.
Thus, even if the dates of the searches are disregarded in
assessing whether probable cause existed, the majority
mischaracterizes the evidence to erroneously support a finding
of contradictory evidence.
26
probable cause was lacking. 4 Viewed properly under the totality
of the circumstances, that conclusion is erroneous.
B.
An official is not entitled to qualified immunity if he or
she “(1) violates a constitutional right and (2) that right was
clearly established.” Graham v. Gagnon, 831 F.3d 176, 182 (4th
Cir. 2016). “If the right was not ‘clearly established’ in the
specific context of the case -- that is, if it was not clear to
a reasonable officer that the conduct in which he allegedly
engaged was unlawful in the situation he confronted -- then the
law affords immunity from suit.” Clem v. Corbeau, 284 F.3d 543,
549 (4th Cir. 2002). It follows that “[t]he right at issue here
is not the general right to be free from arrest without probable
cause, but rather the right to be free from arrest under the
particular circumstances of th[is] case.” Graham, 831 F.3d at
182. If the Court finds that a clearly established
4
There is nothing in the record that indicates that Smith
protested her arrest as a case of mistaken identity at any time
between her arrest and release. Smith’s affidavit, the only
evidence supporting her response to the defendants’ motion for
summary judgment, maintains only that she did not sell any drugs
on the date of the controlled purchase, did not know the
informant, and had employment during that period. Her affidavit
does not deny that she was present at the controlled purchase
location on the date and time of the sale, and she has presented
no alibi. The record does not reflect the basis upon which the
prosecution dismissed the charges against Smith, and,
consequently, no conclusions can be drawn from that occurrence
that are relevant to probable cause.
27
constitutional right has been violated, it will then “determine
whether a reasonable person in the officer’s position would have
known that his or her actions violated that right.” Smith v.
Reddy, 101 F.3d 351, 355 (4th Cir. 1996). A government official
does not lose qualified immunity merely by making a mistake.
Rather, the mistake must be unreasonable. See Messerschmidt v.
Millender, 565 U.S. 535, ___, 132 S. Ct. 1235, 1249 (2012).
Qualified immunity “protects law enforcement officers from bad
guesses in gray areas and ensures that they are liable only for
transgressing bright lines.” Wilson v. Layne, 141 F.3d 111, 114
(4th Cir. 1998) (en banc).
In a Fourth Amendment seizure case, “the fact that a
neutral magistrate has issued a warrant is the clearest
indication that the officers acted in an objectively reasonable
manner.” Messerschmidt, 132 S. Ct. at 1245. The magistrate’s
decision will be insufficient to show objective reasonableness
only when “it is obvious that no reasonably competent officer
would have concluded that a warrant should issue,” such as
“where the warrant was based on an affidavit so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Id. The Supreme Court has
recognized that “the threshold for establishing this exception
is a high one.” Id. “The occasions on which this standard will
be met may be rare, but so too are the circumstances in which it
28
will be appropriate to impose personal liability on a lay
officer in the face of judicial approval of his actions.” Id.
at 1250.
An officer is not required to “exhaust every potential
avenue of investigation before seeking and obtaining a warrant.”
United States v. McNeal, 818 F.3d 141, 151 (4th Cir. 2016);
Wadkins v. Arnold, 214 F.3d 535, 543 (4th Cir. 2000) (“That [the
investigator’s] efforts could have been more thorough, or even
that his actions may have been mistaken, does not mean that they
were unreasonable.”); see also Torchinsky v. Siwinski, 942 F.2d
257, 264 (4th Cir. 1991) (“It will, of course, always be
possible to contend in court that an arresting officer might
have gathered more evidence, but judges cannot pursue all the
steps a police officer might have taken that might have shaken
his belief in the existence of probable cause.”).
As discussed above, Munday knew the first and last name,
race, gender, and physical description of the person who sold
drugs to the confidential informant. Munday also knew that
Smith was a local resident of the county in which the drug
purchase took place, resided within eleven miles of the location
of the drug purchase, and had been convicted on multiple felony
drug charges. Armed with this information, under the totality
of the circumstances, Munday obtained a warrant from a neutral
magistrate. It is one thing to say that the amount of evidence
29
in this case is a close call on probable cause upon which
reasonable triers of fact could differ. It is another entirely
to say, as the majority does, that probable cause was so lacking
that Munday could not rely on a neutral magistrate’s probable
cause determination.
While the majority finds probable cause totally lacking, it
has cited to no case with circumstances similar to this one in
which the Court found a complete dearth of probable cause.
Thus, it is baffling how the majority can now find that Munday
had “fair warning that his alleged conduct was
unconstitutional.” Miller v. Prince George’s Cty., Md., 475
F.3d 621, 631 (4th Cir. 2007). Munday’s “judgment that the
scope of the warrant was supported by probable cause may have
been mistaken, but it was not plainly incompetent.”
Messerschmidt, 132 S. Ct. at 1249. Nor did the magistrate in
this case “so obviously err[] that any reasonable officer would
have recognized the error.” Id. at 1250. The majority opinion
leaves no room for the “reasonable error” inherent in the
qualified immunity analysis –- particularly where, as here, the
officer obtained a warrant from a neutral magistrate -- and is
not consonant with our qualified immunity jurisprudence, which
does not support this type of de novo hindsight. Its
overzealous use of retroactive perfection chills the effective
operation of law enforcement officers, “impair[ing] their
30
ability to protect the public,” Torchinsky, 942 F.2d at 259, and
causing “overdeterrence of energetic law enforcement by
subjecting governmental actors to a high risk of liability,”
Rowland v. Perry, 41 F.3d 167, 172 (4th Cir. 1994). 5
If nothing else, Munday could have reasonably relied on our
decision in Durham, for the reasons stated in the previous
section. The majority goes to great lengths to distinguish
Durham from the current case. If it takes a federal court of
appeals, albeit by a split panel, to distinguish Durham, then it
is apparent that Munday was not put on notice by any “clearly
established” law that his actions were unreasonable. Assuming,
as the majority holds, that probable cause was indeed lacking,
this case plainly presents one of those “gray areas” that we
spoke of in Wilson. Munday is therefore entitled to qualified
immunity.
For the foregoing reasons, I respectfully dissent from the
majority’s reversal of the district court’s probable cause and
qualified immunity rulings as to Officer Munday. I otherwise
concur in the majority opinion.
5 The majority’s conclusion is based on the evidence as it
is presented at this stage of the proceedings. I note that
Munday and any other affected defendants are certainly entitled
to renew their arguments regarding probable cause and qualified
immunity based on the evidence adduced on the merits at trial.
31