Roy Rogers v. Christopher Stem, No. 13-1923 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1923 ROY ROGERS, Plaintiff - Appellee, and DAWN LINDSAY, Plaintiff, v. CHRISTOPHER STEM, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony J. Trenga, District Judge. (1:12-cv-00976-AJT-JFA) Argued: September 16, 2014 Decided: November 6, 2014 Before DUNCAN, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan opinion, in which Judge Agee and Judge Diaz joined. wrote the ARGUED: Robert A. Dybing, THOMPSON MCMULLAN PC, Richmond, Virginia, for Appellant. Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellee. ON BRIEF: Mark R. Colombell, THOMPSON MCMULLAN PC, Richmond, Virginia; Yvonne S. Gibney, Senior Assistant County Attorney, OFFICE OF THE COUNTY ATTORNEY, Hanover, Virginia, for Appellant. Bernadette Armand, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. DUNCAN, Circuit Judge: Defendant-Appellant Christopher Stem (“Officer Stem”), an investigator with the Hanover County Sheriff’s Office (“HCSO”) Narcotics court’s Unit in denial of Hanover, his qualified immunity. manager of Custom Virginia, motion for appeals summary the district judgment based on Plaintiff-Appellee Roy Rogers (“Rogers”), Blends Tobacco Store (“Custom Blends”) in Hanover, Virginia, brought a 42 U.S.C. § 1983 action against Officer arrested Stem in him his in individual violation capacity, of the alleging Fourth and that Stem Fourteenth Amendments to the United States Constitution because Stem lacked probable cause arrest. 1 The to support district the court warrant found that issued Officer for Rogers’s Stem lacked probable cause and was not entitled to qualified immunity. For the reasons that follow, we affirm. 1 Dawn Lindsay, a store clerk at Custom Blends, was also arrested with Rogers and charged with the same violations of Virginia law. Like the charges against Rogers, the charges against Lindsay were dismissed at a preliminary hearing. Lindsay also filed a § 1983 claim against Officer Stem, but voluntarily dismissed her claim on January 15, 2013. 3 I. A. Rogers was the manager pertinent to this appeal. products. of Custom Blends at all times The store sells tobacco and incense The incense products include “air freshener sprays, car vent deodorizers, incense candles, incense sticks, incense cones, and incense burners with aromatic oils, aromatic solids or herbal incense to be heated therein.” Rogers v. Stem, No. 1:12-cv-976 (AJT), 2013 WL 3338651, at *1 (E.D. Va. July 2, 2013); J.A. 468. This case concerns Custom Blends’s herbal incense products, particularly one called “Bayou Blaster.” In early 2011, law enforcement agencies began recognizing herbal incense as a source of synthetic cannabinoids (also known as “synthetic marijuana” or “Spice”). In March 2011, the Virginia General Assembly enacted Va. Code Ann. § 18.2-248.1:1 (“the Virginia statute” or “the statute”), which criminalizes the possession, sale, distribution, and manufacture of synthetic cannabinoids. Id. § 18.2-248.1:1 §§ (B)–(C), (E). The statute identifies substances containing synthetic cannabinoids in two ways. First, section (A) lists a number of chemical compounds specifically banned by the statute--the inclusion of which in any detectable statute. amount renders a substance subject to the Second, section (F) criminalizes substances that meet 4 certain criteria, but are not explicitly listed in section (A). The full text of section (F) provides: Any drug not listed in this section or the Drug Control Act (§ 54.1-3400 et seq.), which is privately compounded, with the specific intent to circumvent the criminal penalties for synthetic cannabinoids, to emulate or simulate the effects of synthetic cannabinoids through chemical changes such as the addition, subtraction or rearranging of a radical or the addition, subtraction or rearranging of a substituent, shall be subject to the same criminal penalties as for synthetic cannabinoids. Va. Code Ann. § 18.2-248.1:1(F) (2011). 2 In other words, section (F) criminalizes substances that were (1) privately compounded, 2 The Virginia General Assembly amended the statute in 2012 to expand the list of chemical compounds in section (A). See Va. Code Ann. § 18.2-248.1:1 (2012); J.A. 30–31. The General Assembly repealed the statute in 2014 and added synthetic cannabinoids (now termed “cannabimimetic agents”) to the Virginia Code’s list of banned Schedule I substances. See Va. Code Ann. § 54.1-3446(7) (2014) (listing as Schedule I substances the chemical compounds from the repealed statute’s section (A), id. § 54.1-3446(7)(b), as well as substances that fall within any of a number of “structural classes,” id. § 54.13446(7)(a)). Another section under the same chapter bans “controlled substance analog[s].” See id. § 54.1-3456. This section appears intended to serve a function analogous to the function that the General Assembly likely intended section (F) of the repealed statute to serve. It bans substances not listed under Schedule I that mimic Schedule I substances, with the following language: A controlled substance analog shall, to the extent intended for human consumption, be treated, for the purposes of any state law, as a controlled substance in Schedule I or II. A controlled substance analog shall be considered to be listed on the same schedule as the drug or class of drugs which it imitates. 5 (2) with the specific intent to avoid the criminal penalties for synthetic marijuana, (3) to mimic the effects of synthetic marijuana, (4) through chemical changes. Following the passage of the Virginia statute, the HCSO began visiting tobacco shopkeepers in the county to inform them of the new law. On April 13, 2011, two members of the HCSO, an officer and an investigator, visited Custom Blends and spoke to the store clerk. confiscated packets During the visit, the officer and investigator various containing herbal sample incense products products. The as well sample as two products-- labeled “K2” and “Euphoria 5X”--were found in the store’s back office and were not being offered for sale. The Virginia Department of Forensic Science (“DFS”) tested the confiscated materials. Both sample products tested positive for section (A) substances, while the other items confiscated from the store tested negative. Rogers, 2013 WL 3338651, at *2 & n.8; J.A. 470–71, 71 n.8. (continued) Id. Unlike section (F), this catchall provision does not require private compounding or a specific intent of the private compounder. That the General Assembly later repealed the statute at issue need not alter our analysis. As will be discussed below, Officer Stem was chargeable with knowledge of the law in place at the time of the events leading to this case. 6 Officer Stem is an investigator for the HCSO. capacity, he has received special In this training in the “identification, properties, and chemical composition of various drugs, including synthetic cannabinoids.” Appellant’s Br. at 3. Following the April 2011 visit, the HCSO began an undercover investigation of Custom Blends, led by Officer Stem. On June 9, 2011, Officer Stem purchased 1.5 grams of herbal incense labeled “Bayou Blaster” incense and determined that it contained the chemical compound AM-2201. Id. at 6. for $37.99. DFS tested the In 2011, section (A) did not include AM-2201 in its list of banned substances. 3 On subsequent visits to Custom Blends, Officer Stem purchased an additional quantity of Bayou Blaster, and another labeled investigator “Hayze Train purchased Wreck.” an Both herbal officers incense product purchased glass smoking pipes that were on display for sale near the herbal incense products. See Rogers, 2013 WL 3338651, at *3; J.A. 472; Appellant’s Br. at 7. Subsequent DFS lab tests confirmed that none of the products purchased from Custom Blends by Officer Stem or substance. any other HCSO officer contained any section (A) Rogers, 2013 WL 3338651, at *3; J.A. 472. 3 The Virginia General Assembly added AM-2201 to the section (A) list in 2012. See Va. Code § 18.2-248.1:1 (2012); J.A. 30– 31. The Virginia Code now classifies AM-2201 as a cannabimimetic agent banned under Schedule I. Va. Code Ann. § 54.1-3446(7)(b). 7 Officer Stem consulted with the Hanover County Commonwealth Attorney’s Office to review the evidence obtained from Custom Blends and to receive guidance “regarding the interpretation and application” of the Virginia statute. Appellant’s Br. at 8. Stem then prepared an affidavit to support a search warrant for Custom Blends. had made In the affidavit, Officer Stem asserted that he undercover Blaster--from Custom purchases of Blends. “Spice”--referring The affidavit also to Bayou noted that Custom Blends had been notified of the Virginia statute, which Stem described as ‘Spice’ illegal.” “ma[king] ‘Spice’ and any product sold as J.A. 365. The magistrate issued the search warrant on September 8, 2011, and the HCSO conducted a search of Custom Blends the same day. During the search, Officer Stem spoke with Rogers, who acknowledged that he was the manager of the store and that he maintained records--including toxicology reports accompanying some of the herbal incense products--in his office at the store. See Rogers, 2013 WL 3338651, at *3; J.A. 473. Rogers also pointed out that the incense products sold by Custom Blends were marked “not for human consumption.” Rogers, 2013 WL 3338651, at *3; J.A. 473. Following the search, Officer Stem, again in consultation with the Hanover County Commonwealth Attorney’s Office, applied for an arrest warrant for Rogers. 8 In support, Stem offered his own sworn oral statements as well as the affidavit submitted with the search warrant application. issued the arrest warrant, and Rogers was he had The magistrate arrested for “conspiracy and possession with intent to distribute synthetic cannabinoids.” Id. at *4; J.A. 474. B. The charges Hanover against County Rogers February 17, 2012. General District at preliminary the Court dismissed hearing stage the on Roughly six months later, on August 30, 2012, Rogers filed a complaint under 42 U.S.C. § 1983 against Stem, alleging that Stem arrested him in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Officer Stem moved for summary judgment on the grounds that he had probable cause to arrest Rogers--citing the evidence his investigation had consultations with Office--and qualified in produced the the immunity from Hanover County alternative, because Custom a that Blends Commonwealth he reasonable was officer and his Attorney’s entitled in to Stem’s position could have believed he or she had probable cause to arrest Rogers. See Mem. Supp. Def.’s Mot. Summ. J., Rogers, 2013 WL 3338651 (No. 1:12-cv-976 (AJT)). The district court denied Officer Stem’s motion for summary judgment. The court found that, because all of the lab tests of products sold by Custom Blends came back negative for section 9 (A) substances, Rogers’s arrest could have been based only on a section (F) violation. The court concluded that Officer Stem lacked probable cause to arrest Rogers under section (F), and that the arrest therefore violated the Fourth and Fourteenth Amendments. In addition, the court found that Officer Stem was not entitled to qualified immunity. The court reasoned that section (F)’s requirement of the compounder’s specific intent was clear on its face, a reasonable officer in Stem’s position would have known compounder’s that specific he did intent, not and have without evidence of evidence of the that “critical aspect” of section (F), a reasonable officer could not have believed he had probable cause to arrest Rogers under that provision. See Rogers, 2013 WL 3338651, at *9; J.A. 486. This appeal followed. II. Interlocutory immunity, are qualified immunity orders, typically such not as denials appealable. determination presents of qualified However, a question when of a law, rather than a disputed question of fact, it may be immediately appealed. See Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008). The two issues presented here are questions of law: whether Officer probable Stem established, cause to believe as a matter of that Rogers committed 10 law, that the he had charged offenses, and if not, qualified immunity. whether Officer Stem is entitled to Therefore, our review of Officer Stem’s interlocutory appeal is proper. III. That the two issues on appeal present questions of law also determines the standard of review. We review questions of law, including probable cause and qualified immunity determinations, de novo. See United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996); Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003). We also review de novo a district court’s resolution of a motion for summary judgment. (4th Cir. 1994). Shaw v. Stroud, 13 F.3d 791, 798 The standard requires that we “view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” 4 Iko, 535 F.3d at 230 (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). Summary judgment is appropriate if “there is no genuine issue as to material fact and . . . the moving party is entitled to 4 Officer Stem argues that under the Eastern District of Virginia’s Local Civil Rule 56(B), Rogers was required to respond to Stem’s proffered facts with a list of disputed facts. We note, as did the district court, that Rogers did not do so. While, in many cases, a party’s failure to comply with this Local Rule could complicate the district court’s factual determinations, and thus affect the record on appeal, that is not the case here, as we accept Stem’s proffered facts. 11 judgment as a matter of law.” Shaw, 13 F.3d at 798 (quoting Fed. R. Civ. P. 56(c)) (internal quotation mark omitted). We consider each of the two issues on appeal in turn. A. Officer Stem contends that he had probable cause to arrest Rogers because he knew from his training and investigation of Custom Blends that the store was selling “Spice,” and because his investigation produced circumstantial evidence that Custom Blends’s herbal incense products were intended to be used as “Spice.” We hold that Officer Stem lacked probable cause to arrest Rogers under section (F) 5 because he failed to produce any evidence regarding a critical component of that provision--that the private compounder of the substances at issue had a specific intent to cannabinoids. evade the criminal penalties for synthetic We note at the outset the difficulty posed by requiring culpability to turn on the state of mind of a nonparty. However, the statute created this difficulty, and we may not rewrite the statute to avoid it. 6 5 The parties agree that the basis for Officer Stem’s arrest of Rogers was an alleged section (F) violation. Indeed, as all of the lab tests performed on Custom Blends’s products for sale came back negative for section (A) substances, Officer Stem could have had probable cause only for a section (F) violation. 6 As we note above, the Virginia General Assembly repealed the statute in 2014, included synthetic cannabinoids as banned 12 Officer Stem argues that he gathered sufficient circumstantial evidence of the compounder’s specific intent to conclude that Custom Blends’s herbal incense products “formulated and marketed to smoke and get high.” Br. at 15. were Appellant’s In particular, Officer Stem presents four bases for asserting that such intent may be inferred: (1) the products’ marketing; (2) the products’ pricing; (3) that one product for sale contained AM-2201, a chemical compound that the Virginia General Assembly later added to the list of substances banned under section toxicology (A); reports and and (4) that labels the marking products them came for “not with human consumption.” Officer Stem’s arguments and his conflation of sections (A) and (F) highlight the problem with the statute. We do not question Officer Stem’s probable cause to believe that several of Custom However, he Blends’s provided herbal no incense evidence products indicative were of any “Spice.” private compounder’s specific intent. First, as to marketing, Officer Stem points to the names of the products, such as “Bayou Blaster” and “Hayze Train Wreck,” which he argues connote “getting high.” (continued) Schedule I substances, and amended provision. See supra note 2. 13 the Appellant’s Br. at 18. accompanying catchall The names may well be suggestive, but they do not suggest that the products’ criminal benign compounder prosecution. and legal had the Rogers products points are high-end fragrances out marketed suggestive of abandoned behavior.” example, specific by intent that with many to avoid types “alluring names Appellee’s Br. at 8. well-respected of companies For Yves Saint Laurent and Fresh are marketed with the names “Opium” and “Cannabis,” respectively. In addition, Custom Blends’s herbal incense products appear to have been labeled by the supplier or wholesaler, rather than by the compounder. See J.A. 351 (photograph of Bayou Blaster label); Appellee’s Br. at 18 n.13 (containing the text of the same Bayou Blaster label, including what appears to be the name of the wholesaler, Da Scents LLC, and if Aroma@DaScents.com). Therefore, intent the even suggested its evade a specific to email address, products’ criminal names penalties, it would not appear to be attributable to the compounder. Second, the products’ pricing further removed from the compounder. to suggest that pricing is determinations are even Stem presents no evidence anything other than a retail determination. Third, Officer Stem argues that Bayou Blaster would not have contained the chemical compound AM-2201 if the compounder meant it to be used as herbal incense. 14 However, when Stem purchased Bayou Blaster in June 2011, section (A) did not cover AM-2201. See Appellant’s Br. at 6; J.A. 29 (containing the 2011 version of the statute). The Virginia General Assembly added AM-2201 to the section (A) list in 2012. 6; J.A. 30–31. See Appellant’s Br. at Stem urges us to conclude that the presence of that substance supports an inference that the private compounder had a specific intent to evade the law. Unlike the marketing and the price, the ingredients of the product do evince choices made by the compounder. But the fact that a substance in the product later became illegal under section (A) tells us nothing about the specific intent of the private compounder, at some indeterminate point in the past and wherever it may have been located, to evade the law of Virginia. Fourth, Officer Stem urges us to conclude that the products’ labeling marking them “not for human consumption” and the toxicology specific intent However, as accompanied distributor. reports of the Officer by Id. accompanying compounder. Stem toxicology notes, them demonstrate Appellant’s these at 27. products--labeled and reports--were Br. the delivered by the The distributor’s knowledge or intent would be relevant under section (F) only if Officer Stem alleged that the distributor was also the private compounder. He does not. We recognize that the Virginia statute was difficult to enforce. And we recognize that Officer Stem, whose job it was 15 to enforce that law, faced a challenging task. Yet, it is plain that Officer Stem provided no evidence of a private compounder’s specific intent to circumvent the criminal penalties imposed by the statute. Though he had probable cause to believe that the substances could emulate the effects of synthetic cannabinoids, he lacked any reasonable belief about the compounder’s specific intent, which was critical to culpability under the statute. We therefore agree with the district court that Officer Stem lacked probable cause to arrest Rogers. B. Officer Stem next contends that, even if this court holds that he lacked probable cause to arrest nonetheless protected by qualified immunity. Rogers, he is He argues that a reasonable officer with his training and experience could have believed he or she had probable cause to arrest Rogers, and that it was not clearly established Rogers’s constitutional rights. that his conduct violated However, because section (F)’s requirements are clear, and because it is clear that Officer Stem failed to gather evidence supporting violation of them, we conclude clearly that Rogers’s established. rights under Because these culpability circumstances under section were (F) turns on the private compounder’s specific intent, and because Officer Stem compounder’s lacked intent, any a information reasonable 16 regarding officer in the Stem’s private position could not have believed he or she had probable cause to arrest Rogers. Thus, we conclude that Officer Stem is not entitled to qualified immunity. In qualified immunity cases, we must identify with particularity the right that the official is alleged to have violated. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). Rather than characterizing it as the general right to be free from arrest without probable cause, the right at issue here is the right to be free presented in this case. must be sufficiently from arrest under the circumstances See id. (“The contours of the right clear that a reasonable official would understand that what he is doing violates that right.” (emphasis added)). In other words, Officer Stem loses the protection of qualified immunity if it would have been clear to a reasonable officer in his position that he or she lacked probable cause to arrest Rogers for a section (F) violation. See Pritchett v. Alford, 973 F.2d 307, 313–14 (4th Cir. 1992) (“[T]he right in issue was the right not to be arrested except upon probable cause to believe that regulation at issue].”). is chargeable with [the plaintiff] had violated That is the case here. knowledge of 17 the law. [the Officer Stem See Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982). 7 The statute was clear that section (F) required the compounder’s specific intent to evade the penalties for synthetic cannabinoids, and Officer Stem lacked any evidence supporting that requirement. Officer Stem also argues that the magistrate’s issuance of the search and arrest warrants shows that Stem acted reasonably in interpreting and seeking to enforce the law. cases, “the fact that a neutral magistrate . In typical . . issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner.” S. Ct. 1235, 1245 (2012). the inquiry. The Messerschmidt v. Millender, 132 However, it does not necessarily end Supreme Court has recognized an exception “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. (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). Officer statute as supporting Stem’s the warrant basis affidavit for application the provided cited suspected only 7 a the offenses, series of Virginia but the conclusory Officer Stem argues that the Virginia statute’s lack of judicial interpretation since enactment compels us to conclude that the right was not clearly established. However, a statute proscribing certain behavior as criminal may be clear, and the rights underlying it clearly established, without adjudication. See Pritchett, 973 F.2d at 314 (citing Anderson, 483 U.S. at 640). 18 references to Custom Blends’s selling “Spice.” J.A. 363–65. It did not specify the statutory section--(A) or (F)--under which Officer Stem sought the warrant. Nor did it provide any basis for a reasonable belief that Rogers had violated section (F). It referred only to the products purchased as “Spice,” without disclosing that lab results had shown the products lacked any chemical compound identified by the General Assembly as Spice, and without providing any information compounder or its specific intent. about the private In addition, the affidavit mischaracterized the statute itself, asserting that the statute “made ‘Spice’ and any product sold as ‘Spice’ illegal.” 365. J.A. As the statute clearly requires the presence of certain chemical compounds under section (A) or the specific intent of a private compounder to evade the criminal penalties for synthetic marijuana under section (F), it did not make “any product sold as ‘Spice’” illegal. Accordingly, Officer Stem is not entitled to qualified immunity. IV. For the foregoing reasons, the district court’s denial of Officer Stem’s motion for summary judgment is AFFIRMED. 19

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