April Smith v. Jason Munday

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.

14
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.’” 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