April Smith v. Jason Munday
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:12-cv-00202-RLV-DSC [1000016501]. [15-1092, 15-1496]
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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.
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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
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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.
officers,
She
named
Defendants
Jason
as
defendants
Munday
and
the
Charles
investigating
McGinley;
the
arresting officers, Defendants Brian Greene and Mark Lesassier;
the
Chief
of
Police,
Defendant
Rodney
Jordan;
Lincolnton; and the Lincolnton Police Department. 1
the
City
of
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.
1
Smith also named the confidential informant, Rufus Lynch,
as a defendant, but voluntarily dismissed him. J.A. 4-5.
3
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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.
84–85.
Lynch
then
went
to
728
East
Pine
purchased crack cocaine from two individuals.
Street,
where
J.A. 85.
the transaction, Lynch returned to the officers.
J.A.
Id.
he
After
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.
wired
to
Lynch
pointed
Supp. J.A. 17.
in
the
And because the camera
wrong
direction,
recording did not capture the drug sale.
J.A. 85.
the
video
The video
instead shows an unidentified black woman sitting on a front
porch, and two other individuals standing on the porch.
It also recorded a discussion of prices.
4
Id.
J.A. 79.
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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.
search
also
revealed
criminal records.
at
least
two
Supp. J.A. 40-41.
other
April
Smiths
His
with
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.
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Smith filed suit, alleging constitutional violations of the
Fourth
and
Fourteenth
intentional
or
negligence,
negligent
Amendments, 2
negligent
and
infliction
supervision,
state-law
of
gross
claims
for
emotional
distress,
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.
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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.”
516,
523
(4th
Cir.
2003)
Rossignol v. Voorhaar, 316 F.3d
(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
prosecution claims.
investigating
J.A. 107.
officers
as
malicious
A claim of malicious prosecution
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under § 1983 is a claim “founded on a Fourth Amendment seizure
that incorporates elements of the analogous common law tort of
malicious prosecution.”
(4th Cir. 2000).
Lambert v. Williams, 223 F.3d 257, 262
This Fourth Amendment claim requires “that [1]
the defendant ha[s] seized plaintiff pursuant to legal process
that
was
not
criminal
supported
proceedings
by
have
probable
cause
terminated
in
and
[2]
that
plaintiff’s
the
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
probable cause to arrest Smith.
issue
is
whether
there
was
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
requires
bare
suspicion,
necessary to convict.”
it
less
than
that
evidence
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.”
The
probable-cause
Id.
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
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the warrant.
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Id.
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Yet the probable-cause inquiry “examine[s] the
facts within the knowledge of arresting officers to determine
whether
they
provide
prudent
persons
would
beliefs
of
arresting
the
a
probability
act;
we
do
officers
on
not
to
which
examine
reasonable
the
determine
subjective
whether
thought that the facts constituted probable cause.”
and
they
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
histories, looking for a woman of the same name.
with
criminal
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.
9
Oral Argument at 18:40,
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Smith v. Munday, -- F. 3d -- (4th Cir. Sept. 20, 2016) (No. 151092),
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.
officers
showed
identification.
Lynch
There
a
There is no evidence that the
photo
is
no
of
Smith
evidence
to
establish
that
the
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.
information
about
Smith
was
that
she
had
His only
previously
been
convicted for selling drugs years past, that she was a black
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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
residents
who
cause
fit
to
the
obtain
generic
arrest
warrants
description
of
for
the
any
local
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
potential avenue of investigation.”
535, 543 (4th Cir. 2000).
still
conduct
some
sort
not
“exhaust[
]
every
Wadkins v. Arnold, 214 F.3d
But an investigating officer must
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 motorvehicle database and found that the owner of the car was Lisa Ann
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Thompson.
Id.
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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.
had
probable
cause
to
Yet this Court found that the officer
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
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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
investigative
offender.
for
that
resources,
name,
as
well
Accurint
and
VCIN,
as
two
to
internet
identify
the
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.
of
drug
Durham also had state convictions for possession
paraphernalia.
Id.
at
186.
After
conducting
investigation, Horner took no role in further proceedings.
A
grand
jury
subsequently
returned
Durham for felony drug distribution.
three
indictments
the
Id.
against
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,
existence of probable cause.”
conclusively
determines
the
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.
grand jury.
Conversely, here, Munday sought no indictment by
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
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participated
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in
determinations,
the
not
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indictment
Horner,
proceeding,
were
the
the
proximate
grand
cause
jury’s
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.
George’s County, 475 F.3d 621, 630 (4th Cir. 2007)).
still had to conduct some level of investigation.
Prince
But he
And he did.
Munday conducted none.
A magistrate judge’s approval of the arrest warrant does not
alter this conclusion.
magistrate
judge’s
We generally accord great deference to a
determination
deference is not “boundless.”
of
probable
cause,
but
that
United States v. Leon, 468 U.S.
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897, 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.’”
Aguilar v. Texas, 378 U.S. 108, 111 (1964)).
placing
Smith
at
the
crime
to
is
so
the
Id. (quoting
Here, the evidence
scant--indeed,
magistrate
it
judge
is
would
non-
existent--that
deferring
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.”
U.S. 335, 344-45 (1986).
15
Malley v. Briggs, 475
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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
if
that
probable
Munday
cause.
was
unreasonable
Smith
did
have
possessing and selling cocaine.
had
no
evidence
about
her
a
he
believed
had
history
criminal
he
for
But as discussed above, Munday
conduct
whatsoever,
let
evidence connecting her to the crime in question.
alone
any
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
standard,
the
it
Supreme
Court
articulated
why
established
the
law
this
should
reasonableness
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.
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Malley, 475 U.S. at 343-44.
applicable here.
unreasonable.
Pg: 17 of 31
Those very same reasons are equally
The warrant issued in this case was wholly
And
the
premature,
or
simply
insufficient,
request for a warrant in this case resulted in Smith’s eightyday 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 patternor-practice theories of liability against the Chief of Police
and
City
of
violation
Lincolnton
occurred.
failed
J.A.
because
111-14.
no
constitutional
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
Department.
brought
claims
against
the
Lincolnton
Police
But a governmental entity may only be sued if the
law of the state in which the court is located permits it.
R.
Civ.
P.
departments
17(b)(3).
cannot
be
Under
sued
as
North
Carolina
entities.
See
law,
Fed.
police
Ostwalt
v.
Charlotte-Mecklenburg Bd. of Educ., 614 F. Supp. 2d 603, 607
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(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).
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IV.
For the foregoing reasons, the district court’s decision is
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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AGEE, Circuit Judge, concurring in part and dissenting in part:
The
supported
entitled
majority
by
to
holds
probable
qualified
that
cause
the
and
arrest
that
immunity.
I
warrant
Officer
was
not
is
not
Munday
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
searched, and the persons or things to be seized.”
place
to
be
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.”
v. Dyer, 956 F.2d 36, 39 (4th Cir. 1991).
20
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Probable cause is determined in view of the totality of the
circumstances.
(1983).
See
“Probable
Illinois
cause
v.
Gates,
sufficient
462
to
U.S.
justify
213,
230-31
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
streetwise assessment of the factual circumstances.”
and
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
See
of
probable
cause
1
turns
on
probability.
I have omitted internal quotation marks, alterations, and
citations here and throughout this partial dissent, unless
otherwise noted.
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Pringle,
incapable
540
Filed: 02/03/2017
U.S.
of
at
371
precise
Pg: 22 of 31
(“The
probable-cause
definition
or
standard
quantification
is
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.”);
(“The
United
process
States
does
not
v.
Cortez,
deal
449
with
hard
U.S.
411,
418
certainties,
(1981)
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”).
common-sensical standard.”
This is a “practical and
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.”
U.S.
at
236.
“It
is
axiomatic
that
hindsight
Gates, 462
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).
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Despite
Horner,
690
opinion
in
Filed: 02/03/2017
the
majority’s
F.3d
183
Durham
is
(4th
Pg: 23 of 31
attempt
Cir.
to
2012),
particularly
distinguish
from
this
analogous.
In
Durham
case,
v.
our
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 fortyfive-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.
indicted
Durham,
Tennessee.
and
he
Id. at 186-87.
was
Id. at 186.
arrested
six
A grand jury
months
later
in
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
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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 midforties; 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
seller
of
as
the
a
circumstances:
“skinny”
the
informant
African-American
female
identified
named
the
“April
Smith”; Smith resided in Lincoln County, North Carolina, 2 and
2
According 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)
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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
considered
drug
sale
“skinny”;
when
and
she
her
was
arrested,
arrest
fluctuations between 125 and 213 pounds.
records
which
could
reflect
be
weight
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)
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connection to a Jeep, did not reside in Virginia at the time of
the
drug
purchases,
and
was
informant’s age description.
the
majority
in
hindsight
significantly
younger
than
the
Despite this stronger evidence,
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.
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probable cause was lacking. 4
Pg: 27 of 31
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.”
Cir. 2016).
Graham v. Gagnon, 831 F.3d 176, 182 (4th
“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.”
549 (4th Cir. 2002).
Clem v. Corbeau, 284 F.3d 543,
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.”
182.
If
the
Court
finds
4
that
a
Graham, 831 F.3d at
clearly
established
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.
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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.”
Reddy, 101 F.3d 351, 355 (4th Cir. 1996).
Smith v.
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
neutral
Fourth
Amendment
magistrate
has
seizure
issued
“the
warrant
a
case,
is
fact
the
that
a
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
“where
have
the
concluded
warrant
that
was
a
based
warrant
on
an
should
issue,”
affidavit
so
such
as
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
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will
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be
Filed: 02/03/2017
appropriate
to
impose
Pg: 29 of 31
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
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this
case
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is
a
close
Pg: 30 of 31
call
on
probable
reasonable triers of fact could differ.
cause
upon
which
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
unconstitutional.”
that
his
alleged
conduct
was
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
Messerschmidt, 132 S. Ct. at 1249.
plainly
incompetent.”
Nor did the magistrate in
this case “so obviously err[] that any reasonable officer would
have recognized the error.”
leaves
no
room
for
the
Id. at 1250.
“reasonable
The majority opinion
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
30
officers,
“impair[ing]
their
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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
section.
in
Durham,
The
for
majority
the
goes
Durham from the current case.
reasons
to
great
stated
in
lengths
the
to
previous
distinguish
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
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